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Karnataka Power Corp. Ltd. Vs. K. Thangappan | was called for. 5. The factual position as noted above clearly shows that for nearly 2 decades the respondent No.1-workman had remained silent. As rightly pointed out by learned counsel for the appellants even in the representations made in 1997 and 1998 there was no reference to the representations claimed to have been made in 1982 and/or 1989. Even if that would have been made, there was considerable delay even in making the representations. There is no dispute that mere making of representations cannot justify a belated approach. 6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769 ). Of course, the discretion has to be exercised judicially and reasonably. 7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc. (1874 (5) P.C. 221 at page 239) was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450 ) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329 ). Sir Barnes had stated: "Now, the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, 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, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, 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 relates to the remedy." 8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N. Bose v. Union of India (AIR 1970 SC 470 ) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay. 9. It was stated in State of M.P. v. Nandlal (AIR 1987 SC 251 ), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 973 ). This was re- iterated in R.N. Boses case (supra) by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. P. Samantaraj (AIR 1976 SC 1617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar (AIR 1976 SC 1639 also). 11. Additionally, whether Clause (4) of the Settlement was applicable to respondent No.1-workman could not have been adjudicated in a writ petition. In fact, the High Court has not even given any finding in that regard. As has been observed by this Court in ONGC Ltd. and Anr. v. Shyamal Chandra Bhowmik (2006 (1) SCC 337 ) in cases of this nature a writ petition is not the proper remedy. | 1[ds]5. The factual position as noted above clearly shows that for nearly 2 decades the respondent No.1-workman had remained silent. As rightly pointed out by learned counsel for the appellants even in the representations made in 1997 and 1998 there was no reference to the representations claimed to have been made in 1982 and/or 1989. Even if that would have been made, there was considerable delay even in making the representations. There is no dispute that mere making of representations cannot justify a belated approach6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. | 1 | 1,814 | 179 | ### Instruction:
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was called for. 5. The factual position as noted above clearly shows that for nearly 2 decades the respondent No.1-workman had remained silent. As rightly pointed out by learned counsel for the appellants even in the representations made in 1997 and 1998 there was no reference to the representations claimed to have been made in 1982 and/or 1989. Even if that would have been made, there was considerable delay even in making the representations. There is no dispute that mere making of representations cannot justify a belated approach. 6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769 ). Of course, the discretion has to be exercised judicially and reasonably. 7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc. (1874 (5) P.C. 221 at page 239) was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450 ) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329 ). Sir Barnes had stated: "Now, the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, 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, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, 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 relates to the remedy." 8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N. Bose v. Union of India (AIR 1970 SC 470 ) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay. 9. It was stated in State of M.P. v. Nandlal (AIR 1987 SC 251 ), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 973 ). This was re- iterated in R.N. Boses case (supra) by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. P. Samantaraj (AIR 1976 SC 1617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar (AIR 1976 SC 1639 also). 11. Additionally, whether Clause (4) of the Settlement was applicable to respondent No.1-workman could not have been adjudicated in a writ petition. In fact, the High Court has not even given any finding in that regard. As has been observed by this Court in ONGC Ltd. and Anr. v. Shyamal Chandra Bhowmik (2006 (1) SCC 337 ) in cases of this nature a writ petition is not the proper remedy.
### Response:
1
### Explanation:
5. The factual position as noted above clearly shows that for nearly 2 decades the respondent No.1-workman had remained silent. As rightly pointed out by learned counsel for the appellants even in the representations made in 1997 and 1998 there was no reference to the representations claimed to have been made in 1982 and/or 1989. Even if that would have been made, there was considerable delay even in making the representations. There is no dispute that mere making of representations cannot justify a belated approach6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party.
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Sambhu Dayal Vs. State Of U.P | public Analyst through notification and that Act 49 of 1964 did not repeal any part of the Food Adulteration Act which then existed and any amendment in the specific provisions of the said Act which were affected by Act 49 of 1964 will not have the effect of repeal of any part of the said Act. We agree with the view taken by the Bench of the Allahabad High Court. The amendment Sections 8 and 9 do not in any way repeal Sections 8 and 9 as they originally stood. As to the effect of the amendment the language of the amending sections will have to be examined to find out whether the original sections were intended to be repealed. The amending provisions should be held as part of the original statute. Whenever the amended section has to be applied subsequent to the date of the amendment the unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. Reading the amended sections we find that there is no provision, express or implied, repealing the existing provisions or the rules made thereunder. The section will have to be construed as being in addition to what had already existed. The effect will be that the power of the State Government which already existed under the unamended section and the appointments made thereunder will be preserved and the action taken under the amended sections will be in addition to the powers of the State Government and the appointments which had already been made.6. The second point that was raised by the learned Counsel was that the sample was sent to the Public Analyst on November 5, 1966 but was analysed only on December 14, 1966. As the analysis was after 44 days it was submitted that the milk would not have been in a fit condition for analysis. This contention was not accepted by the learned Sessions Judge who found that there was no evidence about the sample of milk being pasteurised or its despatch under refrigeration. But the report of the Public Analyst clearly showed that no change had taken place in the constituents of milk which would have interfered with the analysis. Though this point was not pressed before the High Court the learned Counsel relying on a decision of the Nagpur High Court in Dattappa Mahadappa v. Secretary, Municipal Committee, Buldana (AIR 1951 Nag 191) submitted that where milk is analysed by the Analyst a week after the samples were taken no presumption of adulteration can be drawn in the absence of proof of the manner in which the samples were sent and the condition in which the milk was when the samples were received by him. The learned Judge after referring to the various passages in the text book "Milk : Production and Control" by Harvey and Hill observed that taking into account that the milk was analysed by the analyst almost a week after the samples were taken, the absence of proof of the manner in which the samples were sent and the condition in which the milk was when the samples were received by him detracts from the value of Analysts certificate. In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the Analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned, in this case it is admitted that formalin was added to the milk by the Food Inspector. The Food Inspector added 16 drops of formalin in each of the bottles and had them sealed properly. Rule 20 of the Prevention of Food Adulteration Rules requires that in the case of milk, cream, Dahi, Khoa and Gur a preservative known as "formalin", that is to say, a liquid containing about 40 per cent of formaldehyde in aqueous solution in the proportion of 0.1 ml. (two drops) for 25 ml. or 25 grams shall be added. The High Court of Allahabad in Babboo v. State (AIR 1970 All 122 ) held that in the case of cows milk to which necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstance, it retains its character and is capable of being usefully analysed for a period of about ten months, It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is the clear evidence of the public Analyst that no change had taken place in the constituents of milk which would interfere with the analysis. As this statement has not been challenged we see not reasons for accepting the contention of the learned Counsel that the analysis of the milk after 44 days cannot be accepted. This contention has also to be rejected.7. Lastly, the learned Counsel submitted Counsel submitted that the prosecution has not established that the appellant was taking the milk for the purpose of sale. This plea was rejected by the High Court, accepting the evidence of P.W. 2 that he knew the appellant personally and that the appellant carried on the business of selling milk in Orai and possessed a licence in selling milk in the preceding year and also in the current year. According to the witness the appellant brought milk from the rural areas and sold it in Orai in the current year and the was sold by him to hotel keepers. The evidence of this witness was accepted by the High Court and we see no reason to reject the testimony of P.W. 2 The plea of the appellant that he was taking the milk for supplying it to one Triyugi Narain Pandey was rightly rejected by the High Court. | 1[ds]5. On the facts it is not disputed that on the date of the offence neither a public Analyst nor a Food Inspector was appointed after the amending Act 49 of 1964. The learned Counsel would like us to read sections 8 and 9 of the Act as repealing the old sections and empowering the Central Government or the state Government to appoint the public analyst or the Food Inspector after the coming into force of the amending act implying that any prior appointment of a public Analyst or Food Inspector stood repealed. We are unable to accept this contention. It is not necessary for us to go into the question whether the notifications of the Government in 1968 appointing the public Analyst and Food Inspector with retrospective effect from March, 1965 are valid or not for we can rest our decision on the ground that being an amending Act the appointment of the Public analyst and the Food Inspector made by the State Government before the amendment continued to be valid. In Nagar Mahapalika. Lucknow v. Ram Dhani, (AIR 1971 All 53 ) a Bench of the Allahabad High Court held that when the Food Inspector and the Public Analyst were appointed under notifications dated July 27, 1959 issued under the provisions of Prevention of food Adulteration Act, 1954 the effect of the amending Act, Act 49 of 1964, was only to the extent that the Central Government was given concurrent powers with the State Government in the matter of appointment of public Analyst through notification and that Act 49 of 1964 did not repeal any part of the Food Adulteration Act which then existed and any amendment in the specific provisions of the said Act which were affected by Act 49 of 1964 will not have the effect of repeal of any part of the said Act. We agree with the view taken by the Bench of the Allahabad High Court. The amendment Sections 8 and 9 do not in any way repeal Sections 8 and 9 as they originally stood. As to the effect of the amendment the language of the amending sections will have to be examined to find out whether the original sections were intended to be repealed. The amending provisions should be held as part of the original statute. Whenever the amended section has to be applied subsequent to the date of the amendment the unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. Reading the amended sections we find that there is no provision, express or implied, repealing the existing provisions or the rules made thereunder. The section will have to be construed as being in addition to what had already existed. The effect will be that the power of the State Government which already existed under the unamended section and the appointments made thereunder will be preserved and the action taken under the amended sections will be in addition to the powers of the State Government and the appointments which had already beenthe analysis was after 44 days it was submitted that the milk would not have been in a fit condition for analysis. This contention was not accepted by the learned Sessions Judge who found that there was no evidence about the sample of milk being pasteurised or its despatch under refrigeration. But the report of the Public Analyst clearly showed that no change had taken place in the constituents of milk which would have interfered with the analysis. Though this point was not pressed before the High Court the learned Counsel relying on a decision of the Nagpur High Court in Dattappa Mahadappa v. Secretary, Municipal Committee, Buldana (AIR 1951 Nag 191) submitted that where milk is analysed by the Analyst a week after the samples were taken no presumption of adulteration can be drawn in the absence of proof of the manner in which the samples were sent and the condition in which the milk was when the samples were received by him. The learned Judge after referring to the various passages in the text book "Milk : Production and Control" by Harvey and Hill observed that taking into account that the milk was analysed by the analyst almost a week after the samples were taken, the absence of proof of the manner in which the samples were sent and the condition in which the milk was when the samples were received by him detracts from the value of Analysts certificate. In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the Analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned, in this case it is admitted that formalin was added to the milk by the Food Inspector. The Food Inspector added 16 drops of formalin in each of the bottles and had them sealed properly. Rule 20 of the Prevention of Food Adulteration Rules requires that in the case of milk, cream, Dahi, Khoa and Gur a preservative known as "formalin", that is to say, a liquid containing about 40 per cent of formaldehyde in aqueous solution in the proportion of 0.1 ml. (two drops) for 25 ml. or 25 grams shall be added. The High Court of Allahabad in Babboo v. State (AIR 1970 All 122 ) held that in the case of cows milk to which necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstance, it retains its character and is capable of being usefully analysed for a period of about ten months, It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is the clear evidence of the public Analyst that no change had taken place in the constituents of milk which would interfere with the analysis. As this statement has not been challenged we see not reasons for accepting the contention of the learned Counsel that the analysis of the milk after 44 days cannot be accepted. This contention has also to beplea was rejected by the High Court, accepting the evidence of P.W. 2 that he knew the appellant personally and that the appellant carried on the business of selling milk in Orai and possessed a licence in selling milk in the preceding year and also in the current year. According to the witness the appellant brought milk from the rural areas and sold it in Orai in the current year and the was sold by him to hotel keepers. The evidence of this witness was accepted by the High Court and we see no reason to reject the testimony of P.W. 2 The plea of the appellant that he was taking the milk for supplying it to one Triyugi Narain Pandey was rightly rejected by the High Court. | 1 | 2,357 | 1,258 | ### Instruction:
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public Analyst through notification and that Act 49 of 1964 did not repeal any part of the Food Adulteration Act which then existed and any amendment in the specific provisions of the said Act which were affected by Act 49 of 1964 will not have the effect of repeal of any part of the said Act. We agree with the view taken by the Bench of the Allahabad High Court. The amendment Sections 8 and 9 do not in any way repeal Sections 8 and 9 as they originally stood. As to the effect of the amendment the language of the amending sections will have to be examined to find out whether the original sections were intended to be repealed. The amending provisions should be held as part of the original statute. Whenever the amended section has to be applied subsequent to the date of the amendment the unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. Reading the amended sections we find that there is no provision, express or implied, repealing the existing provisions or the rules made thereunder. The section will have to be construed as being in addition to what had already existed. The effect will be that the power of the State Government which already existed under the unamended section and the appointments made thereunder will be preserved and the action taken under the amended sections will be in addition to the powers of the State Government and the appointments which had already been made.6. The second point that was raised by the learned Counsel was that the sample was sent to the Public Analyst on November 5, 1966 but was analysed only on December 14, 1966. As the analysis was after 44 days it was submitted that the milk would not have been in a fit condition for analysis. This contention was not accepted by the learned Sessions Judge who found that there was no evidence about the sample of milk being pasteurised or its despatch under refrigeration. But the report of the Public Analyst clearly showed that no change had taken place in the constituents of milk which would have interfered with the analysis. Though this point was not pressed before the High Court the learned Counsel relying on a decision of the Nagpur High Court in Dattappa Mahadappa v. Secretary, Municipal Committee, Buldana (AIR 1951 Nag 191) submitted that where milk is analysed by the Analyst a week after the samples were taken no presumption of adulteration can be drawn in the absence of proof of the manner in which the samples were sent and the condition in which the milk was when the samples were received by him. The learned Judge after referring to the various passages in the text book "Milk : Production and Control" by Harvey and Hill observed that taking into account that the milk was analysed by the analyst almost a week after the samples were taken, the absence of proof of the manner in which the samples were sent and the condition in which the milk was when the samples were received by him detracts from the value of Analysts certificate. In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the Analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned, in this case it is admitted that formalin was added to the milk by the Food Inspector. The Food Inspector added 16 drops of formalin in each of the bottles and had them sealed properly. Rule 20 of the Prevention of Food Adulteration Rules requires that in the case of milk, cream, Dahi, Khoa and Gur a preservative known as "formalin", that is to say, a liquid containing about 40 per cent of formaldehyde in aqueous solution in the proportion of 0.1 ml. (two drops) for 25 ml. or 25 grams shall be added. The High Court of Allahabad in Babboo v. State (AIR 1970 All 122 ) held that in the case of cows milk to which necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstance, it retains its character and is capable of being usefully analysed for a period of about ten months, It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is the clear evidence of the public Analyst that no change had taken place in the constituents of milk which would interfere with the analysis. As this statement has not been challenged we see not reasons for accepting the contention of the learned Counsel that the analysis of the milk after 44 days cannot be accepted. This contention has also to be rejected.7. Lastly, the learned Counsel submitted Counsel submitted that the prosecution has not established that the appellant was taking the milk for the purpose of sale. This plea was rejected by the High Court, accepting the evidence of P.W. 2 that he knew the appellant personally and that the appellant carried on the business of selling milk in Orai and possessed a licence in selling milk in the preceding year and also in the current year. According to the witness the appellant brought milk from the rural areas and sold it in Orai in the current year and the was sold by him to hotel keepers. The evidence of this witness was accepted by the High Court and we see no reason to reject the testimony of P.W. 2 The plea of the appellant that he was taking the milk for supplying it to one Triyugi Narain Pandey was rightly rejected by the High Court.
### Response:
1
### Explanation:
held that when the Food Inspector and the Public Analyst were appointed under notifications dated July 27, 1959 issued under the provisions of Prevention of food Adulteration Act, 1954 the effect of the amending Act, Act 49 of 1964, was only to the extent that the Central Government was given concurrent powers with the State Government in the matter of appointment of public Analyst through notification and that Act 49 of 1964 did not repeal any part of the Food Adulteration Act which then existed and any amendment in the specific provisions of the said Act which were affected by Act 49 of 1964 will not have the effect of repeal of any part of the said Act. We agree with the view taken by the Bench of the Allahabad High Court. The amendment Sections 8 and 9 do not in any way repeal Sections 8 and 9 as they originally stood. As to the effect of the amendment the language of the amending sections will have to be examined to find out whether the original sections were intended to be repealed. The amending provisions should be held as part of the original statute. Whenever the amended section has to be applied subsequent to the date of the amendment the unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. Reading the amended sections we find that there is no provision, express or implied, repealing the existing provisions or the rules made thereunder. The section will have to be construed as being in addition to what had already existed. The effect will be that the power of the State Government which already existed under the unamended section and the appointments made thereunder will be preserved and the action taken under the amended sections will be in addition to the powers of the State Government and the appointments which had already beenthe analysis was after 44 days it was submitted that the milk would not have been in a fit condition for analysis. This contention was not accepted by the learned Sessions Judge who found that there was no evidence about the sample of milk being pasteurised or its despatch under refrigeration. But the report of the Public Analyst clearly showed that no change had taken place in the constituents of milk which would have interfered with the analysis. Though this point was not pressed before the High Court the learned Counsel relying on a decision of the Nagpur High Court in Dattappa Mahadappa v. Secretary, Municipal Committee, Buldana (AIR 1951 Nag 191) submitted that where milk is analysed by the Analyst a week after the samples were taken no presumption of adulteration can be drawn in the absence of proof of the manner in which the samples were sent and the condition in which the milk was when the samples were received by him. The learned Judge after referring to the various passages in the text book "Milk : Production and Control" by Harvey and Hill observed that taking into account that the milk was analysed by the analyst almost a week after the samples were taken, the absence of proof of the manner in which the samples were sent and the condition in which the milk was when the samples were received by him detracts from the value of Analysts certificate. In the present case there is evidence of the Food Inspector that he added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis. This statement of the Analyst was not challenged in any of the courts below. Apart from the statement of the Analyst not having been questioned, in this case it is admitted that formalin was added to the milk by the Food Inspector. The Food Inspector added 16 drops of formalin in each of the bottles and had them sealed properly. Rule 20 of the Prevention of Food Adulteration Rules requires that in the case of milk, cream, Dahi, Khoa and Gur a preservative known as "formalin", that is to say, a liquid containing about 40 per cent of formaldehyde in aqueous solution in the proportion of 0.1 ml. (two drops) for 25 ml. or 25 grams shall be added. The High Court of Allahabad in Babboo v. State (AIR 1970 All 122 ) held that in the case of cows milk to which necessary quantity of formalin has been added according to Rules and which has been kept in normal circumstance, it retains its character and is capable of being usefully analysed for a period of about ten months, It is unnecessary for us to specify the period for which the sample will remain unaffected but so far as this case is concerned there is the clear evidence of the public Analyst that no change had taken place in the constituents of milk which would interfere with the analysis. As this statement has not been challenged we see not reasons for accepting the contention of the learned Counsel that the analysis of the milk after 44 days cannot be accepted. This contention has also to beplea was rejected by the High Court, accepting the evidence of P.W. 2 that he knew the appellant personally and that the appellant carried on the business of selling milk in Orai and possessed a licence in selling milk in the preceding year and also in the current year. According to the witness the appellant brought milk from the rural areas and sold it in Orai in the current year and the was sold by him to hotel keepers. The evidence of this witness was accepted by the High Court and we see no reason to reject the testimony of P.W. 2 The plea of the appellant that he was taking the milk for supplying it to one Triyugi Narain Pandey was rightly rejected by the High Court.
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Rajeswar Tiwari and Ors Vs. Nanda Kishore Roy | Corruption Act was proper and legal. Reversing the order passed by the High Court, this Court explained the circumstances under which such power could be exercised. Apart from reiterating the earlier norms laid down by this Court, it was further explained that such power could be exercised where allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. No doubt, at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an inquiry as to the probability, reliability or genuineness of the allegation made therein. 17) In Sardar Trilok Singh and others vs. Satya Deo Tripathi (1979) 4 SCC 396 , when the financer seized the truck in question due to default in payment of instalment, buyer of the vehicle launched criminal prosecution, this Court held it as an abuse of process of the court since the dispute was essentially of a civil nature and quashed the entire proceedings. 18) In G. Sagar Suri and another vs. State of U.P. and others, (2000) 2 SCC 636 , this Court has held:- "8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 19) In Alpic Finance Ltd. vs. P. Sadasivan and another (2001) 3 SCC 513 , this court reiterated that the complaint must disclose essential ingredients of the offence. After adverting to Nagawwa (supra), and State of Haryana vs. Bhajan Lal (supra), and after finding that in the complaint there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property, it is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception, upheld the order of the High Court quashed the proceedings and dismissed the appeal. 20) In Indian Oil Corporation vs. NEPC India Ltd. and Others, (2006) 6 SCC 736 , the following paragraphs are relevant:- "13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged."It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant." 21) In the light of the above mentioned well established principles, we are of the view that the High Court has committed an error, firstly, in not assigning any reason and passing a cryptic order and secondly, failed to exercise its jurisdiction under Section 482 when the complaint does not disclose any offence of criminal nature. For the sake of repetition, we reiterate, though the respondent had some grievance about his non promotion, certain orders passed by the High Court including filing of contempt etc., in view of the statutory provisions of the Income Tax Act, the assertion of the appellants that deductions were being made for all the persons who are liable to pay tax in terms of the Income Tax Act, the proper remedy for the respondent is to approach the authority/officer concerned and not by filing complaint as mentioned above. We have already adverted to the report of SI Hirapur holding that the matter in issue is civil in nature. | 0[ds]10) In the case on hand, it is the categorical stand of thethat the amount of tax that has been deducted from the respondents salary as TDS under the head "Salaries" in terms of Section 192 is uniformly done in respect of each and every employee of the company. It is also asserted that the amount of tax so deducted, deposited to the credit of the employees including the respondent in terms of Section 199. They also produced a copy of Formbeing the certificate under Section 203 of the Income Tax Act, 1961 for the tax deducted at source from the income chargeable under the head "salaries" in respect of the respondent relating to period from April 1st, 2003 to March 31st, 2004.11) In the light of the factual scenario, let us see the initial direction of the Judicial Magistrate, Asansol to the IO concerned, the report of the police officer as well as ultimate order dated 31.01.2005 by the Additional Chief Judicial Magistrate issuing summons upon the appellants/accused persons for offence under Section 406 read with 120B IPC in terms of Section 204 of the Code. When the complaint was forwarded to the SI Hirapur, Police Station, he conducted an inquiry, recorded statements of IISCO officials, perused the documents concerned and also noted that the tax was deducted as per their company norms. After making such a note, the SI Hirapur has concluded that "the matter is civil in nature" and forwarded the same to Additional CJM with a request to clarify the same. On the basis of the said report, by order dated 31.01.2005, the Additional CJM, after recording the stand of the complainant about illegal deduction of Rs. 1640/per month from his salary as income tax and the same had not been deposited by the accused persons to the income tax authority month by month, has concluded "on perusal of the same, it appears to me that there is sufficient ground for proceeding against the accused persons under Section 406/120 B IPC." First of all, it is not clear how the Additional CJM has concluded that "there is sufficient ground for proceeding against the accused under Section 406/120 B IPC", more particularly, when the inquiry report by the SI Hirapur shows that the issue raised in the complaint is civil in nature.12) We have already adverted to the relevant provisions from the Income Tax Act, particularly, duty of the employer in deducting tax at source and forwarding the same to the authority concerned i.e. to the credit of Central Government as well as failure to do so results in prosecution. From the materials placed, particularly, the contents of the complaint, relevant statutory provisions of the Income Tax Act, report of the SI Hirapur, we are of the view that the complaint does not disclose any case to proceed against the accused persons as arrived by the Additional CJM. Even if the respondent had some grievance with the appellants aboutdirection of the High Court, pendency of contempt etc. it is not a case for criminal prosecution. If he is very much interested to vindicate his grievance, the respondent could have very well approached the officer concerned of the IISCO or to the IT authority concerned. Though in the complaint, it is stated that the respondent had sent a notice under registered post with acknowledgment due on 17.11.2003, admittedly, no such proof had been placed before the Court. In fact, the appellants stoutly denied the receipt of such a notice.13) Inspite of all the details and materials since the Additional CJM issued summons, the appellants approached the High Court under Section 482 of the Code for quashing the same. The High Court, by the impugned order, without adverting to any of the above mentioned relevant materials passed a cryptic order in one line "I am not inclined to quash the criminal proceeding pending before the Additional CJM, Asansol". No doubt, after dismissing the petition issued certain directions for protection relating to personal appearance of the appellants before the Magistrate.14) This Court, in a series of decisions, has emphasized the inherent power of the High Court to pass appropriate orders to prevent the abuse of process of court or to secure the ends of justice. Though, inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution when adequate materials are available which clearly shows that the proceeding is either of civil nature, cannot be adjudicated by the criminal court or if it is an abuse of process of court, the High Court is well within its power to exercise its inherent jurisdiction and quash theIn the light of the above mentioned well established principles, we are of the view that the High Court has committed an error, firstly, in not assigning any reason and passing a cryptic order and secondly, failed to exercise its jurisdiction under Section 482 when the complaint does not disclose any offence of criminal nature. For the sake of repetition, we reiterate, though the respondent had some grievance about his non promotion, certain orders passed by the High Court including filing of contempt etc., in view of the statutory provisions of the Income Tax Act, the assertion of the appellants that deductions were being made for all the persons who are liable to pay tax in terms of the Income Tax Act, the proper remedy for the respondent is to approach the authority/officer concerned and not by filing complaint as mentioned above. We have already adverted to the report of SI Hirapur holding that the matter in issue is civil in nature. | 0 | 4,884 | 1,027 | ### Instruction:
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Corruption Act was proper and legal. Reversing the order passed by the High Court, this Court explained the circumstances under which such power could be exercised. Apart from reiterating the earlier norms laid down by this Court, it was further explained that such power could be exercised where allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. No doubt, at the stage of quashing an FIR or complaint the High Court is not justified in embarking upon an inquiry as to the probability, reliability or genuineness of the allegation made therein. 17) In Sardar Trilok Singh and others vs. Satya Deo Tripathi (1979) 4 SCC 396 , when the financer seized the truck in question due to default in payment of instalment, buyer of the vehicle launched criminal prosecution, this Court held it as an abuse of process of the court since the dispute was essentially of a civil nature and quashed the entire proceedings. 18) In G. Sagar Suri and another vs. State of U.P. and others, (2000) 2 SCC 636 , this Court has held:- "8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 19) In Alpic Finance Ltd. vs. P. Sadasivan and another (2001) 3 SCC 513 , this court reiterated that the complaint must disclose essential ingredients of the offence. After adverting to Nagawwa (supra), and State of Haryana vs. Bhajan Lal (supra), and after finding that in the complaint there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property, it is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception, upheld the order of the High Court quashed the proceedings and dismissed the appeal. 20) In Indian Oil Corporation vs. NEPC India Ltd. and Others, (2006) 6 SCC 736 , the following paragraphs are relevant:- "13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged."It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant." 21) In the light of the above mentioned well established principles, we are of the view that the High Court has committed an error, firstly, in not assigning any reason and passing a cryptic order and secondly, failed to exercise its jurisdiction under Section 482 when the complaint does not disclose any offence of criminal nature. For the sake of repetition, we reiterate, though the respondent had some grievance about his non promotion, certain orders passed by the High Court including filing of contempt etc., in view of the statutory provisions of the Income Tax Act, the assertion of the appellants that deductions were being made for all the persons who are liable to pay tax in terms of the Income Tax Act, the proper remedy for the respondent is to approach the authority/officer concerned and not by filing complaint as mentioned above. We have already adverted to the report of SI Hirapur holding that the matter in issue is civil in nature.
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10) In the case on hand, it is the categorical stand of thethat the amount of tax that has been deducted from the respondents salary as TDS under the head "Salaries" in terms of Section 192 is uniformly done in respect of each and every employee of the company. It is also asserted that the amount of tax so deducted, deposited to the credit of the employees including the respondent in terms of Section 199. They also produced a copy of Formbeing the certificate under Section 203 of the Income Tax Act, 1961 for the tax deducted at source from the income chargeable under the head "salaries" in respect of the respondent relating to period from April 1st, 2003 to March 31st, 2004.11) In the light of the factual scenario, let us see the initial direction of the Judicial Magistrate, Asansol to the IO concerned, the report of the police officer as well as ultimate order dated 31.01.2005 by the Additional Chief Judicial Magistrate issuing summons upon the appellants/accused persons for offence under Section 406 read with 120B IPC in terms of Section 204 of the Code. When the complaint was forwarded to the SI Hirapur, Police Station, he conducted an inquiry, recorded statements of IISCO officials, perused the documents concerned and also noted that the tax was deducted as per their company norms. After making such a note, the SI Hirapur has concluded that "the matter is civil in nature" and forwarded the same to Additional CJM with a request to clarify the same. On the basis of the said report, by order dated 31.01.2005, the Additional CJM, after recording the stand of the complainant about illegal deduction of Rs. 1640/per month from his salary as income tax and the same had not been deposited by the accused persons to the income tax authority month by month, has concluded "on perusal of the same, it appears to me that there is sufficient ground for proceeding against the accused persons under Section 406/120 B IPC." First of all, it is not clear how the Additional CJM has concluded that "there is sufficient ground for proceeding against the accused under Section 406/120 B IPC", more particularly, when the inquiry report by the SI Hirapur shows that the issue raised in the complaint is civil in nature.12) We have already adverted to the relevant provisions from the Income Tax Act, particularly, duty of the employer in deducting tax at source and forwarding the same to the authority concerned i.e. to the credit of Central Government as well as failure to do so results in prosecution. From the materials placed, particularly, the contents of the complaint, relevant statutory provisions of the Income Tax Act, report of the SI Hirapur, we are of the view that the complaint does not disclose any case to proceed against the accused persons as arrived by the Additional CJM. Even if the respondent had some grievance with the appellants aboutdirection of the High Court, pendency of contempt etc. it is not a case for criminal prosecution. If he is very much interested to vindicate his grievance, the respondent could have very well approached the officer concerned of the IISCO or to the IT authority concerned. Though in the complaint, it is stated that the respondent had sent a notice under registered post with acknowledgment due on 17.11.2003, admittedly, no such proof had been placed before the Court. In fact, the appellants stoutly denied the receipt of such a notice.13) Inspite of all the details and materials since the Additional CJM issued summons, the appellants approached the High Court under Section 482 of the Code for quashing the same. The High Court, by the impugned order, without adverting to any of the above mentioned relevant materials passed a cryptic order in one line "I am not inclined to quash the criminal proceeding pending before the Additional CJM, Asansol". No doubt, after dismissing the petition issued certain directions for protection relating to personal appearance of the appellants before the Magistrate.14) This Court, in a series of decisions, has emphasized the inherent power of the High Court to pass appropriate orders to prevent the abuse of process of court or to secure the ends of justice. Though, inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution when adequate materials are available which clearly shows that the proceeding is either of civil nature, cannot be adjudicated by the criminal court or if it is an abuse of process of court, the High Court is well within its power to exercise its inherent jurisdiction and quash theIn the light of the above mentioned well established principles, we are of the view that the High Court has committed an error, firstly, in not assigning any reason and passing a cryptic order and secondly, failed to exercise its jurisdiction under Section 482 when the complaint does not disclose any offence of criminal nature. For the sake of repetition, we reiterate, though the respondent had some grievance about his non promotion, certain orders passed by the High Court including filing of contempt etc., in view of the statutory provisions of the Income Tax Act, the assertion of the appellants that deductions were being made for all the persons who are liable to pay tax in terms of the Income Tax Act, the proper remedy for the respondent is to approach the authority/officer concerned and not by filing complaint as mentioned above. We have already adverted to the report of SI Hirapur holding that the matter in issue is civil in nature.
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The State of Karnataka and Ors Vs. Gunjahalli Nagappa and Ors | behalf of the State Government. He contended that in any event even if the impugned order was bad and the election process was liable to be continued from the stage at which it was interrupted, the poll could be taken only on the basis of the revised Electoral Roll which had come into being, in the meanwhile, in February 1975 and, therefore, it was necessary for the designated officer to correct the divisional lists of voters so as to bring them in accord with the revised Electoral Roll. This contention is also without force. It is true that there is no provision in the Act similar to Section 23, sub-section (3) of the Representation of the People Act, 1950 providing that no amendment, transposition or deletion of any entry in the list of voters for a division shall be made and no direction for the inclusion of any name in such list of voters shall be given after the last date for making nominations for an election in the division. But the scheme of the Act and particularly Sections 14 and 15 make it clear that it is one list of voters for each division that is contemplated to be in force during the entire process of election. The list of voters is to in prepared for the election and election means the entire process consisting of several stages, and embracing several steps by which an elected member is returned, whether or not it is found necessary to take a poll. Vide Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 = (AIR 1952 SC 64 ). The list of voters must therefore, a fortiori remain the same throughout the process of election. There cannot be one list of voters for determining the eligibility to stand as a candidate and another for determining the eligibility to vote, at the same election. That would not only be irrational, but would also introduce confusion and uncertainty in the election process. Candidates would not, know at the time when they file their nominations as to what is the strength and composition of the electorate in the division in which they are contesting the election. They would also be handicapped in canvassing for votes. It would indeed be a strange and anomalous position if there were two or more different lists of voters at different stages of the same election. Sub-s, (1) of Section 14 does not contemplate a list of voters which keeps on changing from time to time during the election process. It deems the Electoral Roll for the territorial area of the division in force at the relevant time to be the list of voters for the division "for the purpose of the Act", that is for the purpose of election which is the whole process culminating in a candidate being declared elected and not merely polling. The same list of voters is, therefore, to prevail for all stages in the election. This we find emphasised also in sub-s. (3) of S, 14 which enacts that every person whose name is in the list of voters referred to in sub-section (1)shall be qualified to vote at the election of a member for the division to which such list pertains. Sub-section (2) of S. 15 also points in the same direction. It says that "the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected as the case may be, at an election". The reference here as a matter of plain grammar, is indisputably to the same list of voters which is to be conclusive evidence for both purposes. It is, therefore, clear, on a proper interpretation of the provision of the Act, that the Legislature did not intend that the list of voters should change from time to time during the process of election and the relevant Electoral Roll for the purpose of preparation of the list of voters must consequently be taken to be the Electoral Roll in force at the date when the election process commenced, that is, the date when the calendar of events was published. The same view was taken by a Division Bench of the Mysore High Court in Shivappa Chanamallappa Jogendra v. Basavannappa Gadlappa Bankar, (1965) 2 Mys LJ 289. We are in agreement with that view. The poll in the present case must, therefore, be taken on the basis of the list of voters for each division prepared with reference to the Electoral Roll in force on 7th December, 1974, that being the date on which the calendar of events was published by the Returning Officer.12. One other question was also raised before us, namely, whether the designated officer can be required to rectify the list of voters for a division, if it can be shown that the list of voters does not correspond exactly with the Electoral Roll for the territorial area of the division, as for example, some voters in a particular house in a Census Block number falling in the division, though shown in the Electoral Roll as such, are, through inadvertence, omitted to be included in the list of voters for the division. It is not necessary for the purpose of the present appeal to decide this question, but we may point out that till the election process has commenced by the issue of notice fixing the calendar of events, there is no reason why the designated officer should not be entitled to rectify such defect in the list of voters and bring the list of voters in conformity with the Electoral Roll. But once the calendar of events is published and the election process has begun, it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. We, however, do not wish to express any final opinion on this point. | 0[ds]It is not necessary for the purpose of the present appeal to embark on a discussion on the wider question as to what are the different circumstances in which the power conferred under Rule 75 can be exercised by the State Government and what kind of order can be made by the State Government in exercise of such power. It would indeed be inexpedient and unwise to draw the precise lines within which the power under Rule 75 should be exercisable, for there may be infinite valid circumstances which may call for exercise of suchsuch power could not be found in Rule 75, it was common ground that there was no other provision in the Act or the Rules which would justify the making of the impugned order and it would plainly be invalid.6. Now, the only justification pleaded by the State Government in support of the exercise of the power under Rule 75 was that the divisionwise lists of voters prepared and authenticated by the designated officer were defective and if the election were held on the basis of such defective lists of voters, it would not be in accordance with the provisions of the Act and hence the impugned order had to be made by the State Government for ensuring that the election was held in accordance with the provisions of the Act as contemplated under Rule 75. This justification, plausible though it may seem, is, in our opinion, without merit.It will be seen on a plain reading of sub-s. (1) of Section 14 that the electoral roll for the territorial area comprised in a division is to be deemed to be the list of voters for such division. The designated officer is merely to perform the operation of scissors and paste - cut out those portions of the electoral roll which relate to the territorial area included in the division and paste them together so as to form the list of voters for thewas for this reason that it was held by this Court that it was not enough that the name of a person should be registered in the electoral roll of a Parliamentary Constituency. That did not entitle him straightway to be included in the electoral roll of the Municipality.Now in the present case, it is clear from the Order of the Returning Officer dated 21st December, 1974 that the list of voters for each division corresponded fully and completely with the Electoral Roll for the territorial area comprised in such division. The finding of the Returning Officer was that the various parts of the Electoral Roll included in the list of voters for each division conformed to the Census Block numbers of the respective division mentioned in the Notification dated 3rd December, 1974. Each Division was defined and demarcated by reference to Census Block numbers and the parts of the Electoral Roll were also made out on the basis of Census Block numbers. There could, therefore, be no doubt or confusion as to which parts of the Electoral Roll related to the territorial area comprised in a particular division. The corresponding parts of the Electoral Roll could be easily ascertained and identified by reference to census Block numbers for preparing the list of voters for each division. That was admittedly done in the present case and there was no complaint about it. No defect was also alleged or found in this respect. The only defect - if at all it can be called a defect - which the Returning Officer noticed on physical verification was that the voters shown in the Electoral Roll as residing in the territorial area of one division were in fact residing in another. But, as already pointed out above, that cannot be regarded as a defect in the division-wise lists of voters and it would not stamp them with the vice of not being in conformity with the requirements of the Act. The State Government was, therefore, in any view of the matter not entitled to make the impugned order under Rule 75 on the ground that the divisional lists of voters were defective and the election held on the basis of such lists of voters would not be in accordance with the provisions of the Act. What the State Government did by making the impugned order was to interfere with the election process which was going on in accordance with law and that was clearly not permissible on any interpretation of Rulecontention is also without force. It is true that there is no provision in the Act similar to Section 23, sub-section (3) of the Representation of the People Act, 1950 providing that no amendment, transposition or deletion of any entry in the list of voters for a division shall be made and no direction for the inclusion of any name in such list of voters shall be given after the last date for making nominations for an election in theis, therefore, clear, on a proper interpretation of the provision of the Act, that the Legislature did not intend that the list of voters should change from time to time during the process of election and the relevant Electoral Roll for the purpose of preparation of the list of voters must consequently be taken to be the Electoral Roll in force at the date when the election process commenced, that is, the date when the calendar of events wasare in agreement with that view. The poll in the present case must, therefore, be taken on the basis of the list of voters for each division prepared with reference to the Electoral Roll in force on 7th December, 1974, that being the date on which the calendar of events was published by the Returning Officer.12. One other question was also raised before us, namely, whetherthe designated officer can be required to rectify the list of voters for adivision, if it can be shown that the list of voters does not correspond exactly with the Electoral Roll for the territorial area of the division, as for example, some voters in a particular house in a Census Block number falling in the division, though shown in the Electoral Roll as such, are, through inadvertence, omitted to be included in the list of voters for the division. It is not necessary for the purpose of the present appeal to decide this question, but we may point out that till the election process has commenced by the issue of notice fixing the calendar of events, there is no reason why the designated officer should not be entitled to rectify such defect in the list of voters and bring the list of voters in conformity with the Electoral Roll. But once the calendar of events is published and the election process has begun, it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. We, however, do not wish to express any final opinion on this point. | 0 | 5,084 | 1,241 | ### Instruction:
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behalf of the State Government. He contended that in any event even if the impugned order was bad and the election process was liable to be continued from the stage at which it was interrupted, the poll could be taken only on the basis of the revised Electoral Roll which had come into being, in the meanwhile, in February 1975 and, therefore, it was necessary for the designated officer to correct the divisional lists of voters so as to bring them in accord with the revised Electoral Roll. This contention is also without force. It is true that there is no provision in the Act similar to Section 23, sub-section (3) of the Representation of the People Act, 1950 providing that no amendment, transposition or deletion of any entry in the list of voters for a division shall be made and no direction for the inclusion of any name in such list of voters shall be given after the last date for making nominations for an election in the division. But the scheme of the Act and particularly Sections 14 and 15 make it clear that it is one list of voters for each division that is contemplated to be in force during the entire process of election. The list of voters is to in prepared for the election and election means the entire process consisting of several stages, and embracing several steps by which an elected member is returned, whether or not it is found necessary to take a poll. Vide Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 = (AIR 1952 SC 64 ). The list of voters must therefore, a fortiori remain the same throughout the process of election. There cannot be one list of voters for determining the eligibility to stand as a candidate and another for determining the eligibility to vote, at the same election. That would not only be irrational, but would also introduce confusion and uncertainty in the election process. Candidates would not, know at the time when they file their nominations as to what is the strength and composition of the electorate in the division in which they are contesting the election. They would also be handicapped in canvassing for votes. It would indeed be a strange and anomalous position if there were two or more different lists of voters at different stages of the same election. Sub-s, (1) of Section 14 does not contemplate a list of voters which keeps on changing from time to time during the election process. It deems the Electoral Roll for the territorial area of the division in force at the relevant time to be the list of voters for the division "for the purpose of the Act", that is for the purpose of election which is the whole process culminating in a candidate being declared elected and not merely polling. The same list of voters is, therefore, to prevail for all stages in the election. This we find emphasised also in sub-s. (3) of S, 14 which enacts that every person whose name is in the list of voters referred to in sub-section (1)shall be qualified to vote at the election of a member for the division to which such list pertains. Sub-section (2) of S. 15 also points in the same direction. It says that "the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected as the case may be, at an election". The reference here as a matter of plain grammar, is indisputably to the same list of voters which is to be conclusive evidence for both purposes. It is, therefore, clear, on a proper interpretation of the provision of the Act, that the Legislature did not intend that the list of voters should change from time to time during the process of election and the relevant Electoral Roll for the purpose of preparation of the list of voters must consequently be taken to be the Electoral Roll in force at the date when the election process commenced, that is, the date when the calendar of events was published. The same view was taken by a Division Bench of the Mysore High Court in Shivappa Chanamallappa Jogendra v. Basavannappa Gadlappa Bankar, (1965) 2 Mys LJ 289. We are in agreement with that view. The poll in the present case must, therefore, be taken on the basis of the list of voters for each division prepared with reference to the Electoral Roll in force on 7th December, 1974, that being the date on which the calendar of events was published by the Returning Officer.12. One other question was also raised before us, namely, whether the designated officer can be required to rectify the list of voters for a division, if it can be shown that the list of voters does not correspond exactly with the Electoral Roll for the territorial area of the division, as for example, some voters in a particular house in a Census Block number falling in the division, though shown in the Electoral Roll as such, are, through inadvertence, omitted to be included in the list of voters for the division. It is not necessary for the purpose of the present appeal to decide this question, but we may point out that till the election process has commenced by the issue of notice fixing the calendar of events, there is no reason why the designated officer should not be entitled to rectify such defect in the list of voters and bring the list of voters in conformity with the Electoral Roll. But once the calendar of events is published and the election process has begun, it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. We, however, do not wish to express any final opinion on this point.
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designated officer were defective and if the election were held on the basis of such defective lists of voters, it would not be in accordance with the provisions of the Act and hence the impugned order had to be made by the State Government for ensuring that the election was held in accordance with the provisions of the Act as contemplated under Rule 75. This justification, plausible though it may seem, is, in our opinion, without merit.It will be seen on a plain reading of sub-s. (1) of Section 14 that the electoral roll for the territorial area comprised in a division is to be deemed to be the list of voters for such division. The designated officer is merely to perform the operation of scissors and paste - cut out those portions of the electoral roll which relate to the territorial area included in the division and paste them together so as to form the list of voters for thewas for this reason that it was held by this Court that it was not enough that the name of a person should be registered in the electoral roll of a Parliamentary Constituency. That did not entitle him straightway to be included in the electoral roll of the Municipality.Now in the present case, it is clear from the Order of the Returning Officer dated 21st December, 1974 that the list of voters for each division corresponded fully and completely with the Electoral Roll for the territorial area comprised in such division. The finding of the Returning Officer was that the various parts of the Electoral Roll included in the list of voters for each division conformed to the Census Block numbers of the respective division mentioned in the Notification dated 3rd December, 1974. Each Division was defined and demarcated by reference to Census Block numbers and the parts of the Electoral Roll were also made out on the basis of Census Block numbers. There could, therefore, be no doubt or confusion as to which parts of the Electoral Roll related to the territorial area comprised in a particular division. The corresponding parts of the Electoral Roll could be easily ascertained and identified by reference to census Block numbers for preparing the list of voters for each division. That was admittedly done in the present case and there was no complaint about it. No defect was also alleged or found in this respect. The only defect - if at all it can be called a defect - which the Returning Officer noticed on physical verification was that the voters shown in the Electoral Roll as residing in the territorial area of one division were in fact residing in another. But, as already pointed out above, that cannot be regarded as a defect in the division-wise lists of voters and it would not stamp them with the vice of not being in conformity with the requirements of the Act. The State Government was, therefore, in any view of the matter not entitled to make the impugned order under Rule 75 on the ground that the divisional lists of voters were defective and the election held on the basis of such lists of voters would not be in accordance with the provisions of the Act. What the State Government did by making the impugned order was to interfere with the election process which was going on in accordance with law and that was clearly not permissible on any interpretation of Rulecontention is also without force. It is true that there is no provision in the Act similar to Section 23, sub-section (3) of the Representation of the People Act, 1950 providing that no amendment, transposition or deletion of any entry in the list of voters for a division shall be made and no direction for the inclusion of any name in such list of voters shall be given after the last date for making nominations for an election in theis, therefore, clear, on a proper interpretation of the provision of the Act, that the Legislature did not intend that the list of voters should change from time to time during the process of election and the relevant Electoral Roll for the purpose of preparation of the list of voters must consequently be taken to be the Electoral Roll in force at the date when the election process commenced, that is, the date when the calendar of events wasare in agreement with that view. The poll in the present case must, therefore, be taken on the basis of the list of voters for each division prepared with reference to the Electoral Roll in force on 7th December, 1974, that being the date on which the calendar of events was published by the Returning Officer.12. One other question was also raised before us, namely, whetherthe designated officer can be required to rectify the list of voters for adivision, if it can be shown that the list of voters does not correspond exactly with the Electoral Roll for the territorial area of the division, as for example, some voters in a particular house in a Census Block number falling in the division, though shown in the Electoral Roll as such, are, through inadvertence, omitted to be included in the list of voters for the division. It is not necessary for the purpose of the present appeal to decide this question, but we may point out that till the election process has commenced by the issue of notice fixing the calendar of events, there is no reason why the designated officer should not be entitled to rectify such defect in the list of voters and bring the list of voters in conformity with the Electoral Roll. But once the calendar of events is published and the election process has begun, it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. We, however, do not wish to express any final opinion on this point.
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M/S DEEP INDUSTRIES LTD Vs. OIL AND NATURAL GAS CORPORATION LTD | into and deciding the Section 17 application. In point of fact, the Arbitral Tribunal was well within its jurisdiction in referring to the contract and the ban order and then applying the law and finally issuing the stay order. Even if it be accepted that the principle laid down by Section 41(e) of the Specific Relief Act was infracted, in that damages could have been granted, as a result of which an injunction ought not to have been issued, is a mere error of law and not an error of jurisdiction, much less an error of inherent jurisdiction going to the root of the matter. Therefore, even otherwise, the High Court judgment cannot be sustained and is set aside. 17. We reiterate that the policy of the Act is speedy disposal of arbitration cases. The Arbitration Act is a special act and a self contained code dealing with arbitration. This Court in Fuerst Day Lawson Limited (supra), has specifically held as follows: 89. It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan v. Andha Bank Ltd., (2004) 11 SCC 672 was held to be a self-contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lulcid expression of Tulzapurkar,J., that it carries with it a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded. What becomes clear is that had the High Court itself disposed of the first appeal in the present case, no article 227 petition could possibly lie - all that could perhaps have been done was to file an LPA before a Division Bench of the same High Court. This, as we have seen, has specifically been interdicted by Fuerst Day Lawson Limited (supra). Merely because, on the facts of this case, the first appeal was disposed of by a court subordinate to the High Court, an article 227 petition ought not to have been entertained. 18. Mr. Rohatgi is also correct in pointing out that the legislative policy qua the general revisional jurisdiction that is contained by the amendments made to Section 115 C.P.C. should also be kept in mind when High Courts dispose of petitions filed under under article 227. The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against interlocutory orders. These amendments were considered in Tek Singh vs. Shashi Verma and Another, 2019 SCC OnLine SC 168 in which this Court adverted to these amendments and then stated: 7. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders. 8. Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi v. Sarup Singh and Others (1970) 2 SCR 368 this Court held: The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words illegally and with material irregularity as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal. at Pg.373 | 1[ds]11. Given the aforesaid statutory provision and given the fact that the 1996 Act repealed three previous enactments in order that there be speedy disposal of all matters covered by it, it is clear that the statutory policy of the Act is that not only are time limits set down for disposal of the arbitral proceedings themselves but time limits have also been set down for Section 34 references to be decided. Equally, in Union of India vs. M/s Varindera Const. Ltd., dated 17.09.2018, disposing of SLP (C) No. 23155/2013, this Court has imposed the self-same limitation on first appeals under Section 37 so that there be a timely resolution of all matters which are covered by arbitration awards12. Most significant of all is the non-obstante clause contained in Section 5 which states that notwithstanding anything contained in any other law, in matters that arise under Part I of the Arbitration Act, no judicial authority shall intervene except where so provided in this Part. Section 37 grants a constricted right of first appeal against certain judgments and orders and no others. Further, the statutory mandate also provides for one bite at the cherry, and interdicts a second appeal being filed (See Section 37(2) of the Act)13. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non-obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdictionIn SBP & Co. (supra), this Court while considering interference with an order passed by an arbitral tribunal under Article 226/227 of the Constitution laid down as follows:-45. It is seen that some High Courts have proceeded on the basis that any order passed by an arbitral tribunal during arbitration, would be capable of being challenged under Article 226 or 227 of the Constitution. We see no warrant for such an approach. Section 37 makes certain orders of the arbitral tribunal appealable. Under Section 34, the aggrieved party has an avenue for ventilating his grievances against the award including any in-between orders that might have been passed by the arbitral tribunal acting under Section 16 of the Act. The party aggrieved by any order of the arbitral tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the award is passed by the Tribunal. This appears to be the scheme of the Act. The arbitral tribunal is, after all, a creature of a contract between the parties, the arbitration agreement, even though, if the occasion arises, the Chief Justice may constitute it based on the contract between the parties. But that would not alter the status of the arbitral tribunal. It will still be a forum chosen by the parties by agreement. We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the arbitral tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution. Such an intervention by the High Courts is not permissible46. The object of minimizing judicial intervention while the matter is in the process of being arbitrated upon, will certainly be defeated if the High Court could be approached under Article 227 or under Article 226 of the Constitution against every order made by the arbitral tribunal. Therefore, it is necessary to indicate that once the arbitration has commenced in the arbitral tribunal, parties have to wait until the award is pronounced unless, of course, a right of appeal is available to them under Section 37 of the Act even at an earlier stageWhile the learned Additional Solicitor General is correct in stating that this statement of the law does not directly apply on the facts of the present case, yet it is important to notice that the seven-Judge Bench has referred to the object of the Act being that of minimizing judicial intervention and that this important object should always be kept in the forefront when a 227 petition is being disposed of against proceedings that are decided under the Act15. It is true that in Punjab Agro Industries Corporation Limited (supra), this Court distinguished SBP & Co. (supra) stating that it will not apply to a case of a non- appointment of an Arbitrator. This Court held:9. We have already noticed that though the order under Section 11(4) is a judicial order, having regard to Section 11(7) relating to finality of such orders and the absence of any provision for appeal, the order of the Civil Judge was open to challenge in a writ petition under Article 227 of the Constitution. The decision in SBP & Co. does not bar such a writ petition. The observations of this Court in SBP & Co. that against an order under Section 11 of the Act, only an appeal under Article 136 of the Constitution would lie, is with reference to the orders made by the Chief Justice of a High Court or by the designate Judge of that High Court. The said observations do not apply to a subordinate court functioning as designate of the Chief JusticeWhat is important to note is that the observations of this Court in this judgment were for the reason that no provision for appeal had been given by statute against the orders passed under Section 11, which is why the High Courts supervisory jurisdiction should first be invoked before coming to this Court under Article 136. Given the facts of the present case, this case is equally distinguishable for the reason that in this case the 227 jurisdiction has been exercised by the High Court only after a first appeal was dismissed under Section 37 of the Act16. One other feature of this case is of some importance. As stated herein above, on 09.05.2018, a Section 16 application had been dismissed by the learned Arbitrator in which substantially the same contention which found favour with the High Court was taken up. The drill of Section 16 of the Act is that where a Section 16 application is dismissed, no appeal is provided and the challenge to the Section 16 application being dismissed must await the passing of a final award at which stage it may be raised under Section 34. What the High Court has done in the present case is to invert this statutory scheme by going into exactly the same matter as was gone into by the arbitrator in the Section 16 application, and then decided that the two year ban was no part of the notice for arbitration issued on 02.11.2017, a finding which is directly contrary to the finding of the learned Arbitrator dismissing the Section 16 application. For this reason alone, the judgment under appeal needs to be set aside. Even otherwise, as has been correctly pointed out by Mr. Rohatgi, the judgment under appeal goes into the merits of the case and states that the action of putting the Contractor and his Directors on holiday is not a consequence of the termination of the agreement. This is wholly incorrect as it is only because of the termination that the show cause notice dated 18.10.2017 proposing to impose a two year ban was sent. Even otherwise, entering into the general thicket of disputes between the parties does not behove a court exercising jurisdiction under Article 227, where only jurisdictional errors can be corrected. Therefore to state that the ban order was passed under a General Contract Manual and not Clause 18 of the Agreement, besides being incorrect, would also be incorrect for the reason that the General Contract Manual does not mean that such order was issued as an administrative order invoking the executive power, but was only as an order which emanated from the contract itself. Further to state that serious disputes as to jurisdiction seem to have cropped up is not the same thing as saying that the Arbitral Tribunal lacked inherent jurisdiction in going into and deciding the Section 17 application. In point of fact, the Arbitral Tribunal was well within its jurisdiction in referring to the contract and the ban order and then applying the law and finally issuing the stay order. Even if it be accepted that the principle laid down by Section 41(e) of the Specific Relief Act was infracted, in that damages could have been granted, as a result of which an injunction ought not to have been issued, is a mere error of law and not an error of jurisdiction, much less an error of inherent jurisdiction going to the root of the matter. Therefore, even otherwise, the High Court judgment cannot be sustained and is set asideWhat becomes clear is that had the High Court itself disposed of the first appeal in the present case, no article 227 petition could possibly lie - all that could perhaps have been done was to file an LPA before a Division Bench of the same High Court. This, as we have seen, has specifically been interdicted by Fuerst Day Lawson Limited (supra). Merely because, on the facts of this case, the first appeal was disposed of by a court subordinate to the High Court, an article 227 petition ought not to have been entertained18. Mr. Rohatgi is also correct in pointing out that the legislative policy qua the general revisional jurisdiction that is contained by the amendments made to Section 115 C.P.C. should also be kept in mind when High Courts dispose of petitions filed under under article 227. The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against interlocutory ordersThese amendments were considered in Tek Singh vs. Shashi Verma and Another, 2019 SCC OnLine SC 168 in which this Court adverted to these amendments and then stated:7. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders8. Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi v. Sarup Singh and Others (1970) 2 SCR 368 this Court held:The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words illegally and with material irregularity as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal. at Pg.373 | 1 | 5,766 | 2,384 | ### Instruction:
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into and deciding the Section 17 application. In point of fact, the Arbitral Tribunal was well within its jurisdiction in referring to the contract and the ban order and then applying the law and finally issuing the stay order. Even if it be accepted that the principle laid down by Section 41(e) of the Specific Relief Act was infracted, in that damages could have been granted, as a result of which an injunction ought not to have been issued, is a mere error of law and not an error of jurisdiction, much less an error of inherent jurisdiction going to the root of the matter. Therefore, even otherwise, the High Court judgment cannot be sustained and is set aside. 17. We reiterate that the policy of the Act is speedy disposal of arbitration cases. The Arbitration Act is a special act and a self contained code dealing with arbitration. This Court in Fuerst Day Lawson Limited (supra), has specifically held as follows: 89. It is, thus, to be seen that Arbitration Act, 1940, from its inception and right through to 2004 (in P.S. Sathappan v. Andha Bank Ltd., (2004) 11 SCC 672 was held to be a self-contained code. Now, if the Arbitration Act, 1940 was held to be a self-contained code, on matters pertaining to arbitration, the Arbitration and Conciliation Act, 1996, which consolidates, amends and designs the law relating to arbitration to bring it, as much as possible, in harmony with the UNCITRAL Model must be held only to be more so. Once it is held that the Arbitration Act is a self-contained code and exhaustive, then it must also be held, using the lulcid expression of Tulzapurkar,J., that it carries with it a negative import that only such acts as are mentioned in the Act are permissible to be done and acts or things not mentioned therein are not permissible to be done In other words, a letters patent appeal would be excluded by the application of one of the general principles that where the special Act sets out a self-contained code the applicability of the general law procedure would be impliedly excluded. What becomes clear is that had the High Court itself disposed of the first appeal in the present case, no article 227 petition could possibly lie - all that could perhaps have been done was to file an LPA before a Division Bench of the same High Court. This, as we have seen, has specifically been interdicted by Fuerst Day Lawson Limited (supra). Merely because, on the facts of this case, the first appeal was disposed of by a court subordinate to the High Court, an article 227 petition ought not to have been entertained. 18. Mr. Rohatgi is also correct in pointing out that the legislative policy qua the general revisional jurisdiction that is contained by the amendments made to Section 115 C.P.C. should also be kept in mind when High Courts dispose of petitions filed under under article 227. The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against interlocutory orders. These amendments were considered in Tek Singh vs. Shashi Verma and Another, 2019 SCC OnLine SC 168 in which this Court adverted to these amendments and then stated: 7. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders. 8. Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi v. Sarup Singh and Others (1970) 2 SCR 368 this Court held: The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words illegally and with material irregularity as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal. at Pg.373
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two year ban was no part of the notice for arbitration issued on 02.11.2017, a finding which is directly contrary to the finding of the learned Arbitrator dismissing the Section 16 application. For this reason alone, the judgment under appeal needs to be set aside. Even otherwise, as has been correctly pointed out by Mr. Rohatgi, the judgment under appeal goes into the merits of the case and states that the action of putting the Contractor and his Directors on holiday is not a consequence of the termination of the agreement. This is wholly incorrect as it is only because of the termination that the show cause notice dated 18.10.2017 proposing to impose a two year ban was sent. Even otherwise, entering into the general thicket of disputes between the parties does not behove a court exercising jurisdiction under Article 227, where only jurisdictional errors can be corrected. Therefore to state that the ban order was passed under a General Contract Manual and not Clause 18 of the Agreement, besides being incorrect, would also be incorrect for the reason that the General Contract Manual does not mean that such order was issued as an administrative order invoking the executive power, but was only as an order which emanated from the contract itself. Further to state that serious disputes as to jurisdiction seem to have cropped up is not the same thing as saying that the Arbitral Tribunal lacked inherent jurisdiction in going into and deciding the Section 17 application. In point of fact, the Arbitral Tribunal was well within its jurisdiction in referring to the contract and the ban order and then applying the law and finally issuing the stay order. Even if it be accepted that the principle laid down by Section 41(e) of the Specific Relief Act was infracted, in that damages could have been granted, as a result of which an injunction ought not to have been issued, is a mere error of law and not an error of jurisdiction, much less an error of inherent jurisdiction going to the root of the matter. Therefore, even otherwise, the High Court judgment cannot be sustained and is set asideWhat becomes clear is that had the High Court itself disposed of the first appeal in the present case, no article 227 petition could possibly lie - all that could perhaps have been done was to file an LPA before a Division Bench of the same High Court. This, as we have seen, has specifically been interdicted by Fuerst Day Lawson Limited (supra). Merely because, on the facts of this case, the first appeal was disposed of by a court subordinate to the High Court, an article 227 petition ought not to have been entertained18. Mr. Rohatgi is also correct in pointing out that the legislative policy qua the general revisional jurisdiction that is contained by the amendments made to Section 115 C.P.C. should also be kept in mind when High Courts dispose of petitions filed under under article 227. The legislative policy is that no revision lies if an alternative remedy of appeal is available. Further, even when a revision does lie, it lies only against a final disposal of the entire matter and not against interlocutory ordersThese amendments were considered in Tek Singh vs. Shashi Verma and Another, 2019 SCC OnLine SC 168 in which this Court adverted to these amendments and then stated:7. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 CPC are not maintainable against interlocutory orders8. Even otherwise, it is well settled that the revisional jurisdiction under Section 115 CPC is to be exercised to correct jurisdictional errors only. This is well settled. In D.L.F. Housing & Construction Company Private Ltd., New Delhi v. Sarup Singh and Others (1970) 2 SCR 368 this Court held:The position thus seems to be firmly established that while exercising the jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case. It was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question. Clause (c) also does not seem to apply to the case in hand. The words illegally and with material irregularity as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with. The High Court does not seem to have adverted to the limitation imposed on its power under Section 115 of the Code. Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under Section 115 of the Code when there was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question. It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal. at Pg.373
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General Manager, Southern Railway, Madras Vs. T M. Paramasivam | BEG, J. 1. The General Manager, Southern Railway obtained Special Leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court. The learned Judges, Veeraswami, C. J., and Raghavan, J., had held, in a very short judgment, a notification of the Railway Department, retiring the petitioner-respondent from service with effect from 3rd October, 1970, to be inoperative. 2. The petitioner-respondent had been appointed a temporary Clerk on 10th December, 1936, and had been confirmed in that post on 1st September, 1938. He contended that he was entitled to continue in service until he had attained the age of 60 years. He alleged that the notification retiring him had been issued on the wrong assumption that he had to retire at the age of 58 years which is the normal age of retirement. He claimed the benefit of Rule 2046 (b) of the Railway Establishment Code. 3. According to Rule 2046 (b), a Ministerial Railway Servant was entitled to the higher age of retirement provided, firstly, he had entered Govt. service on or before 31st March, 1938; and, secondly, he had held "on that date" (i. e. on 31st March, 1938), either : (i) "a lien or, a suspended lien on a permanent post"; or (ii) "a permanent post in a provisional substantive capacity under clause (d) of Rule 2008 and had continued to hold the same without interruption until he was confirmed in that post." 4. It is clear that the respondent petitioner fulfilled the first condition inasmuch as he had entered Govt. service on 10th December, 1936, which was obviously before 31st March, 1938. The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement. It is very difficult to appreciate the reasoning of the High Court when Rule 2046 (b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Govt. servant "on that date", that is to say on 31-3-1938. The specified requirements of the rule could not be overridden by some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, 1938. 5. The second of the two alternatives in the second set of conditions could not apply to the respondent petitioner as he was only a "temporary Govt. servant" and not a "provisional Govt. servant" as defined by Rule 2008 (2). Rule 2008 may be reproduced here. It reads :"2008 - Suspension of lien : - (a) A competent authority shall suspend the lien of a railway servant on a permanent post which he holds substantively if he is appointed in a substantive capacity : (1) to a tenure post or (2) to a permanent post outside the cadre on which he is borne, or (3) provisionally, to a post on which another railway servant would hold a lien had his lien not been suspended under this rule. (b) A competent authority may, at its option, suspend the lien of a Railway servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this Rule, is transferred whether in a substantive of officiating capacity, to a post in another cadre, and if in any of these cases there is a reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years. (c) Notwithstanding anything contained in Clauses (a) and (b) of this Rule a railway servants lien on a tenure post may, on circumstances, be suspended. If he is appointed substantively to another permanent post, his lien on the tenure must be terminated. (d) If a railway servants lien on a post is suspended under clause (a) or (b) or this Rule, the post may be filled substantively and the railway servant appointed to hold it sub-tantively shall acquire a lien on it provided that the arrangements shall be reversed as soon as the suspended lien revises. Note : - This clause applies if the post concerned is a post in a selection grade of a cadre." 6. The respondent petitioner having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date. He could neither have a lien nor a suspended lien on a permanent post. He could also not be found to hold a permanent post in a provisional capacity under clause (d) of Rule 2008 before 31st March, 1938. The respondent petitioner had not been shown to hold a permanent post on 31st March, 1938. Learned Counsel for the appellant, therefore, relied on : State of Punjab v. Dharam Singh. (1968) 3 SCR 1 = (AIR 1968 SC 1210 ); State of Nagaland v. G. Vasantha, AIR 1970 SC 537 ; Director of Panchayat Raj v. Babu Singh Gaur, (1972) 2 SCR 400 = (AIR 1972 SC 420 ). Learned Counsel for the respondent petitioner found it impossible to justify the order of the Madras High Court. 7. Learned Counsel for the appellant stated that the Railway Administration does not propose to claim any refund of salary paid to the respondent petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get the question of law involved settled. The position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision. | 1[ds]6. The respondent petitioner having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date. He could neither have a lien nor a suspended lien on a permanent post. He could also not be found to hold a permanent post in a provisional capacity under clause (d) of Rule 2008 before 31st March, 1938. The respondent petitioner had not been shown to hold a permanent post on 31st March, 1938. Learned Counsel for the appellant, therefore, relied on : State of Punjab v. Dharam Singh. (1968) 3 SCR 1 = (AIR 1968 SC 1210 ); State of Nagaland v. G. Vasantha, AIR 1970 SC 537 ; Director of Panchayat Raj v. Babu Singh Gaur, (1972) 2 SCR 400 = (AIR 1972 SC 420 ). Learned Counsel for the respondent petitioner found it impossible to justify the order of the Madras High Court7. Learned Counsel for the appellant stated that the Railway Administration does not propose to claim any refund of salary paid to the respondent petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get the question of law involved settled. The position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision. | 1 | 1,152 | 268 | ### 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:
BEG, J. 1. The General Manager, Southern Railway obtained Special Leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court. The learned Judges, Veeraswami, C. J., and Raghavan, J., had held, in a very short judgment, a notification of the Railway Department, retiring the petitioner-respondent from service with effect from 3rd October, 1970, to be inoperative. 2. The petitioner-respondent had been appointed a temporary Clerk on 10th December, 1936, and had been confirmed in that post on 1st September, 1938. He contended that he was entitled to continue in service until he had attained the age of 60 years. He alleged that the notification retiring him had been issued on the wrong assumption that he had to retire at the age of 58 years which is the normal age of retirement. He claimed the benefit of Rule 2046 (b) of the Railway Establishment Code. 3. According to Rule 2046 (b), a Ministerial Railway Servant was entitled to the higher age of retirement provided, firstly, he had entered Govt. service on or before 31st March, 1938; and, secondly, he had held "on that date" (i. e. on 31st March, 1938), either : (i) "a lien or, a suspended lien on a permanent post"; or (ii) "a permanent post in a provisional substantive capacity under clause (d) of Rule 2008 and had continued to hold the same without interruption until he was confirmed in that post." 4. It is clear that the respondent petitioner fulfilled the first condition inasmuch as he had entered Govt. service on 10th December, 1936, which was obviously before 31st March, 1938. The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement. It is very difficult to appreciate the reasoning of the High Court when Rule 2046 (b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be fulfilled by the Govt. servant "on that date", that is to say on 31-3-1938. The specified requirements of the rule could not be overridden by some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, 1938. 5. The second of the two alternatives in the second set of conditions could not apply to the respondent petitioner as he was only a "temporary Govt. servant" and not a "provisional Govt. servant" as defined by Rule 2008 (2). Rule 2008 may be reproduced here. It reads :"2008 - Suspension of lien : - (a) A competent authority shall suspend the lien of a railway servant on a permanent post which he holds substantively if he is appointed in a substantive capacity : (1) to a tenure post or (2) to a permanent post outside the cadre on which he is borne, or (3) provisionally, to a post on which another railway servant would hold a lien had his lien not been suspended under this rule. (b) A competent authority may, at its option, suspend the lien of a Railway servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this Rule, is transferred whether in a substantive of officiating capacity, to a post in another cadre, and if in any of these cases there is a reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years. (c) Notwithstanding anything contained in Clauses (a) and (b) of this Rule a railway servants lien on a tenure post may, on circumstances, be suspended. If he is appointed substantively to another permanent post, his lien on the tenure must be terminated. (d) If a railway servants lien on a post is suspended under clause (a) or (b) or this Rule, the post may be filled substantively and the railway servant appointed to hold it sub-tantively shall acquire a lien on it provided that the arrangements shall be reversed as soon as the suspended lien revises. Note : - This clause applies if the post concerned is a post in a selection grade of a cadre." 6. The respondent petitioner having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date. He could neither have a lien nor a suspended lien on a permanent post. He could also not be found to hold a permanent post in a provisional capacity under clause (d) of Rule 2008 before 31st March, 1938. The respondent petitioner had not been shown to hold a permanent post on 31st March, 1938. Learned Counsel for the appellant, therefore, relied on : State of Punjab v. Dharam Singh. (1968) 3 SCR 1 = (AIR 1968 SC 1210 ); State of Nagaland v. G. Vasantha, AIR 1970 SC 537 ; Director of Panchayat Raj v. Babu Singh Gaur, (1972) 2 SCR 400 = (AIR 1972 SC 420 ). Learned Counsel for the respondent petitioner found it impossible to justify the order of the Madras High Court. 7. Learned Counsel for the appellant stated that the Railway Administration does not propose to claim any refund of salary paid to the respondent petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get the question of law involved settled. The position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision.
### Response:
1
### Explanation:
6. The respondent petitioner having been confirmed on 1st September, 1938, could be said to be appointed in substantive capacity only on that date. He could neither have a lien nor a suspended lien on a permanent post. He could also not be found to hold a permanent post in a provisional capacity under clause (d) of Rule 2008 before 31st March, 1938. The respondent petitioner had not been shown to hold a permanent post on 31st March, 1938. Learned Counsel for the appellant, therefore, relied on : State of Punjab v. Dharam Singh. (1968) 3 SCR 1 = (AIR 1968 SC 1210 ); State of Nagaland v. G. Vasantha, AIR 1970 SC 537 ; Director of Panchayat Raj v. Babu Singh Gaur, (1972) 2 SCR 400 = (AIR 1972 SC 420 ). Learned Counsel for the respondent petitioner found it impossible to justify the order of the Madras High Court7. Learned Counsel for the appellant stated that the Railway Administration does not propose to claim any refund of salary paid to the respondent petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get the question of law involved settled. The position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision.
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M/S Goa Carbon Limited Vs. Commr.Of Trade Tax | 6.5.06. The Tribunal further held that there was no merit in the argument of the assessee that lease agreement was executed pursuant to Letter of Intent dated 29.10.91, particularly, when there was no indication to that effect in the lease. According to the Tribunal, had the lease been executed in continuation of the Letter of Intent, there would have been reference to such letter in the lease and in the absence of such reference it cannot be said that the lease stood executed pursuant to the Letter of Intent. Consequently, the appeal filed by the assessee before the Tribunal stood dismissed. The Tax Revisions, filed by the assessee before the High Court, have also been dismissed, hence this civil appeal. 8. In the case of 20th Century Finance Corpn. Ltd. (supra) the Constitution Bench of this Court by majority held that delivery of goods may be one of the elements of transfer of right to use, but the same would not be the condition precedent for a contract of transfer of right to use goods. That, where a party has entered into a formal contract and the goods are available for delivery, irrespective of the place where they are located, the situs of such sale would be where the property in goods passes, namely, where the contract is entered into [See: para 25]. It has been further held that Article 366(29-A)(d) shows that levy of tax is not on use of goods but on the transfer of the right to use goods. That, right to use arises only on the transfer of such a right under the contract and unless there is transfer of such right, the right to use does not arise. Therefore, it is the transfer which is sine qua non for the right to use any goods. If the goods are available, the transfer of the right to use takes place when the contract in respect thereof is executed. As soon as the contract is executed, the right is vested in the lessee [See: para 27].9. On reading the above judgment it is clear that, in cases falling under Section 3F of the 1948 Act, the subject-matter of taxation is transfer of right to use goods and, therefore, it is unnecessary to deal with the question of delivery of possession which is related to situs. Therefore, in this case the place where the right to use is transferred is relevant and not place of delivery which may be relevant in case of oral contracts to determine the situs. In cases under Section 3F, the subject-matter of taxation is transfer of right to use and, therefore, place where such right is transferred assumes importance. Hence, we are required to look to the place at which the contract is executed. In case of oral contracts with which we are not concerned the situs of the transfer may be where goods are delivered.10. According to assessee, the Letter of Intent was the contract which existed on 29.10.91. However, the said Letter does not indicate the place, namely, Mumbai. It is important to note that this Letter of Intent was produced for the first time after 12 years by the assessee. No explanation has been given for not producing the said letter earlier, particularly, when the Department had repeatedly called upon the assessee to produce any agreement/arrangement prior to the lease and pursuant to which the Purchase Orders dated 28.11.91 were placed by the assessee with the Punjab Chemicals and Pharmaceuticals Ltd. Moreover, in the invoice dated 26.2.92, M/s. Kesar Enterprises Limited Baheri is described as lessee. On that date there was no lease. The lease has been executed only on 24.3.92. Taking into account the aforesaid circumstances, we are of the view that the Letter of Intent produced after 12 years cannot be relied upon in support of the assessees case that there was a prior agreement/arrangement even before 24.3.92 pursuant to which the equipment stood purchased. From the above circumstances it is clear that the Letter of Intent is executed not for commercial purposes but to evade the tax and consequently it cannot be said that the impugned transaction was an outside sale. In the case of 20th Century Finance Corpn. Ltd. (supra), the assessee carried on business of leasing of diverse equipment. In that case, assessee had entered into Master Lease Agreements with the lessee which provided that orders for individual equipment will be placed at the instance of the lessee by the appellants and that the equipment to be leased will be despatched by the supplier to the locations specified in the lease. Therefore, in that case it was established that the appellants had placed their purchase orders to the suppliers pursuant to the Master Lease Agreement whereas in the present case there is nothing to indicate that there existed an agreement/arrangement pursuant to which the Purchase Orders were placed on 28.11.91. Therefore, on the facts of the present case, we hold that the judgment of this Court in the case of 20th Century Finance Corpn. Ltd. (supra) has no application to the present case. In fact, the record indicates that the Letter of Intent surfaced after 12 years at the instance of the assessee in order to align this case with the facts in the case of 20th Century Finance Corpn. Ltd. (supra).11. For the aforestated reasons, we are in agreement with the view expressed by the Tribunal that the entire arrangement was got up in order to project the impugned transaction as an outside sale so that the said transaction does not come within the ambit of Section 3F of the 1948 Act. The High Court has given reasons with which we do not agree in entirety though we agree with the operative part of its judgment dismissing the appeal of the assessee.12. For the aforestated reasons, in the facts of the present case, we do not wish to interfere with the finding of fact recorded by the Tribunal in the present case. Accordingly, the | 0[ds]8. In the case of 20th Century Finance Corpn. Ltd. (supra) the Constitution Bench of this Court by majority held that delivery of goods may be one of the elements of transfer of right to use, but the same would not be the condition precedent for a contract of transfer of right to use goods. That, where a party has entered into a formal contract and the goods are available for delivery, irrespective of the place where they are located, the situs of such sale would be where the property in goods passes, namely, where the contract is entered into [See: para 25]. It has been further held that Article 366(29-A)(d) shows that levy of tax is not on use of goods but on the transfer of the right to use goods. That, right to use arises only on the transfer of such a right under the contract and unless there is transfer of such right, the right to use does not arise. Therefore, it is the transfer which is sine qua non for the right to use any goods. If the goods are available, the transfer of the right to use takes place when the contract in respect thereof is executed. As soon as the contract is executed, the right is vested in the lessee [See: para 27].9. On reading the above judgment it is clear that, in cases falling under Section 3F of the 1948 Act, the subject-matter of taxation is transfer of right to use goods and, therefore, it is unnecessary to deal with the question of delivery of possession which is related to situs. Therefore, in this case the place where the right to use is transferred is relevant and not place of delivery which may be relevant in case of oral contracts to determine the situs. In cases under Section 3F, the subject-matter of taxation is transfer of right to use and, therefore, place where such right is transferred assumes importance. Hence, we are required to look to the place at which the contract is executed. In case of oral contracts with which we are not concerned the situs of the transfer may be where goods are delivered.10. According to assessee, the Letter of Intent was the contract which existed on 29.10.91. However, the said Letter does not indicate the place, namely, Mumbai. It is important to note that this Letter of Intent was produced for the first time after 12 years by the assessee. No explanation has been given for not producing the said letter earlier, particularly, when the Department had repeatedly called upon the assessee to produce any agreement/arrangement prior to the lease and pursuant to which the Purchase Orders dated 28.11.91 were placed by the assessee with the Punjab Chemicals and Pharmaceuticals Ltd. Moreover, in the invoice dated 26.2.92, M/s. Kesar Enterprises Limited Baheri is described as lessee. On that date there was no lease. The lease has been executed only on 24.3.92. Taking into account the aforesaid circumstances, we are of the view that the Letter of Intent produced after 12 years cannot be relied upon in support of the assessees case that there was a prior agreement/arrangement even before 24.3.92 pursuant to which the equipment stood purchased. From the above circumstances it is clear that the Letter of Intent is executed not for commercial purposes but to evade the tax and consequently it cannot be said that the impugned transaction was an outside sale. In the case of 20th Century Finance Corpn. Ltd. (supra), the assessee carried on business of leasing of diverse equipment. In that case, assessee had entered into Master Lease Agreements with the lessee which provided that orders for individual equipment will be placed at the instance of the lessee by the appellants and that the equipment to be leased will be despatched by the supplier to the locations specified in the lease. Therefore, in that case it was established that the appellants had placed their purchase orders to the suppliers pursuant to the Master Lease Agreement whereas in the present case there is nothing to indicate that there existed an agreement/arrangement pursuant to which the Purchase Orders were placed on 28.11.91. Therefore, on the facts of the present case, we hold that the judgment of this Court in the case of 20th Century Finance Corpn. Ltd. (supra) has no application to the present case. In fact, the record indicates that the Letter of Intent surfaced after 12 years at the instance of the assessee in order to align this case with the facts in the case of 20th Century Finance Corpn. Ltd. (supra).11. For the aforestated reasons, we are in agreement with the view expressed by the Tribunal that the entire arrangement was got up in order to project the impugned transaction as an outside sale so that the said transaction does not come within the ambit of Section 3F of the 1948 Act. The High Court has given reasons with which we do not agree in entirety though we agree with the operative part of its judgment dismissing the appeal of the assessee.12. For the aforestated reasons, in the facts of the present case, we do not wish to interfere with the finding of fact recorded by the Tribunal in the present case. | 0 | 1,827 | 979 | ### 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:
6.5.06. The Tribunal further held that there was no merit in the argument of the assessee that lease agreement was executed pursuant to Letter of Intent dated 29.10.91, particularly, when there was no indication to that effect in the lease. According to the Tribunal, had the lease been executed in continuation of the Letter of Intent, there would have been reference to such letter in the lease and in the absence of such reference it cannot be said that the lease stood executed pursuant to the Letter of Intent. Consequently, the appeal filed by the assessee before the Tribunal stood dismissed. The Tax Revisions, filed by the assessee before the High Court, have also been dismissed, hence this civil appeal. 8. In the case of 20th Century Finance Corpn. Ltd. (supra) the Constitution Bench of this Court by majority held that delivery of goods may be one of the elements of transfer of right to use, but the same would not be the condition precedent for a contract of transfer of right to use goods. That, where a party has entered into a formal contract and the goods are available for delivery, irrespective of the place where they are located, the situs of such sale would be where the property in goods passes, namely, where the contract is entered into [See: para 25]. It has been further held that Article 366(29-A)(d) shows that levy of tax is not on use of goods but on the transfer of the right to use goods. That, right to use arises only on the transfer of such a right under the contract and unless there is transfer of such right, the right to use does not arise. Therefore, it is the transfer which is sine qua non for the right to use any goods. If the goods are available, the transfer of the right to use takes place when the contract in respect thereof is executed. As soon as the contract is executed, the right is vested in the lessee [See: para 27].9. On reading the above judgment it is clear that, in cases falling under Section 3F of the 1948 Act, the subject-matter of taxation is transfer of right to use goods and, therefore, it is unnecessary to deal with the question of delivery of possession which is related to situs. Therefore, in this case the place where the right to use is transferred is relevant and not place of delivery which may be relevant in case of oral contracts to determine the situs. In cases under Section 3F, the subject-matter of taxation is transfer of right to use and, therefore, place where such right is transferred assumes importance. Hence, we are required to look to the place at which the contract is executed. In case of oral contracts with which we are not concerned the situs of the transfer may be where goods are delivered.10. According to assessee, the Letter of Intent was the contract which existed on 29.10.91. However, the said Letter does not indicate the place, namely, Mumbai. It is important to note that this Letter of Intent was produced for the first time after 12 years by the assessee. No explanation has been given for not producing the said letter earlier, particularly, when the Department had repeatedly called upon the assessee to produce any agreement/arrangement prior to the lease and pursuant to which the Purchase Orders dated 28.11.91 were placed by the assessee with the Punjab Chemicals and Pharmaceuticals Ltd. Moreover, in the invoice dated 26.2.92, M/s. Kesar Enterprises Limited Baheri is described as lessee. On that date there was no lease. The lease has been executed only on 24.3.92. Taking into account the aforesaid circumstances, we are of the view that the Letter of Intent produced after 12 years cannot be relied upon in support of the assessees case that there was a prior agreement/arrangement even before 24.3.92 pursuant to which the equipment stood purchased. From the above circumstances it is clear that the Letter of Intent is executed not for commercial purposes but to evade the tax and consequently it cannot be said that the impugned transaction was an outside sale. In the case of 20th Century Finance Corpn. Ltd. (supra), the assessee carried on business of leasing of diverse equipment. In that case, assessee had entered into Master Lease Agreements with the lessee which provided that orders for individual equipment will be placed at the instance of the lessee by the appellants and that the equipment to be leased will be despatched by the supplier to the locations specified in the lease. Therefore, in that case it was established that the appellants had placed their purchase orders to the suppliers pursuant to the Master Lease Agreement whereas in the present case there is nothing to indicate that there existed an agreement/arrangement pursuant to which the Purchase Orders were placed on 28.11.91. Therefore, on the facts of the present case, we hold that the judgment of this Court in the case of 20th Century Finance Corpn. Ltd. (supra) has no application to the present case. In fact, the record indicates that the Letter of Intent surfaced after 12 years at the instance of the assessee in order to align this case with the facts in the case of 20th Century Finance Corpn. Ltd. (supra).11. For the aforestated reasons, we are in agreement with the view expressed by the Tribunal that the entire arrangement was got up in order to project the impugned transaction as an outside sale so that the said transaction does not come within the ambit of Section 3F of the 1948 Act. The High Court has given reasons with which we do not agree in entirety though we agree with the operative part of its judgment dismissing the appeal of the assessee.12. For the aforestated reasons, in the facts of the present case, we do not wish to interfere with the finding of fact recorded by the Tribunal in the present case. Accordingly, the
### Response:
0
### Explanation:
8. In the case of 20th Century Finance Corpn. Ltd. (supra) the Constitution Bench of this Court by majority held that delivery of goods may be one of the elements of transfer of right to use, but the same would not be the condition precedent for a contract of transfer of right to use goods. That, where a party has entered into a formal contract and the goods are available for delivery, irrespective of the place where they are located, the situs of such sale would be where the property in goods passes, namely, where the contract is entered into [See: para 25]. It has been further held that Article 366(29-A)(d) shows that levy of tax is not on use of goods but on the transfer of the right to use goods. That, right to use arises only on the transfer of such a right under the contract and unless there is transfer of such right, the right to use does not arise. Therefore, it is the transfer which is sine qua non for the right to use any goods. If the goods are available, the transfer of the right to use takes place when the contract in respect thereof is executed. As soon as the contract is executed, the right is vested in the lessee [See: para 27].9. On reading the above judgment it is clear that, in cases falling under Section 3F of the 1948 Act, the subject-matter of taxation is transfer of right to use goods and, therefore, it is unnecessary to deal with the question of delivery of possession which is related to situs. Therefore, in this case the place where the right to use is transferred is relevant and not place of delivery which may be relevant in case of oral contracts to determine the situs. In cases under Section 3F, the subject-matter of taxation is transfer of right to use and, therefore, place where such right is transferred assumes importance. Hence, we are required to look to the place at which the contract is executed. In case of oral contracts with which we are not concerned the situs of the transfer may be where goods are delivered.10. According to assessee, the Letter of Intent was the contract which existed on 29.10.91. However, the said Letter does not indicate the place, namely, Mumbai. It is important to note that this Letter of Intent was produced for the first time after 12 years by the assessee. No explanation has been given for not producing the said letter earlier, particularly, when the Department had repeatedly called upon the assessee to produce any agreement/arrangement prior to the lease and pursuant to which the Purchase Orders dated 28.11.91 were placed by the assessee with the Punjab Chemicals and Pharmaceuticals Ltd. Moreover, in the invoice dated 26.2.92, M/s. Kesar Enterprises Limited Baheri is described as lessee. On that date there was no lease. The lease has been executed only on 24.3.92. Taking into account the aforesaid circumstances, we are of the view that the Letter of Intent produced after 12 years cannot be relied upon in support of the assessees case that there was a prior agreement/arrangement even before 24.3.92 pursuant to which the equipment stood purchased. From the above circumstances it is clear that the Letter of Intent is executed not for commercial purposes but to evade the tax and consequently it cannot be said that the impugned transaction was an outside sale. In the case of 20th Century Finance Corpn. Ltd. (supra), the assessee carried on business of leasing of diverse equipment. In that case, assessee had entered into Master Lease Agreements with the lessee which provided that orders for individual equipment will be placed at the instance of the lessee by the appellants and that the equipment to be leased will be despatched by the supplier to the locations specified in the lease. Therefore, in that case it was established that the appellants had placed their purchase orders to the suppliers pursuant to the Master Lease Agreement whereas in the present case there is nothing to indicate that there existed an agreement/arrangement pursuant to which the Purchase Orders were placed on 28.11.91. Therefore, on the facts of the present case, we hold that the judgment of this Court in the case of 20th Century Finance Corpn. Ltd. (supra) has no application to the present case. In fact, the record indicates that the Letter of Intent surfaced after 12 years at the instance of the assessee in order to align this case with the facts in the case of 20th Century Finance Corpn. Ltd. (supra).11. For the aforestated reasons, we are in agreement with the view expressed by the Tribunal that the entire arrangement was got up in order to project the impugned transaction as an outside sale so that the said transaction does not come within the ambit of Section 3F of the 1948 Act. The High Court has given reasons with which we do not agree in entirety though we agree with the operative part of its judgment dismissing the appeal of the assessee.12. For the aforestated reasons, in the facts of the present case, we do not wish to interfere with the finding of fact recorded by the Tribunal in the present case.
|
SOUTH DELHI MUNICIPAL CORPORATION Vs. M/S. TODAY HOMES AND INFRASTRUCTURE PVT. LTD. ETC | rights on a class of citizens, should be complete codes by themselves. With that object in view, forums were created under the Acts themselves where grievances could be entertained on behalf of the persons aggrieved (Shiv Kumar Chadha Etc. Etc v. Municipal Corporation of Delhi (1993) 3 SCC 161 ). 11. Wherever a right or liability, not pre-existing in common law is created by a statute and that statute itself provides a machinery for enforcement of such right or liability, both the right/liability and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the jurisdiction of the civil court is impliedly barred (Raja Ram Kumar Bhargava (Dead) By LRs v. Union of India (1988) 1 SCC 681 ). 12. We find that a liability for payment of tax is created by the Delhi Municipal Corporation Act, 1957. Further, a remedy by way of an appeal against an order of assessment, before an appropriate forum or authority, has been provided by the same statute. 13. As to various issues on the correctness of a return itself, or whether or not a return is correct; whether or not transactions which are not mentioned in the return, but about which the appropriate authority has knowledge, fall within the mischief of the charging section; what is the true or real extent of the transactions which are assessable; all these and other allied questions have to be determined by the appropriate authorities themselves. An assessment, based even on an erroneous finding about the character of the transaction, is an assessment made well within jurisdiction and cannot be said to be outside the purview of the Act (Kamala Mills Ltd v. State of Bombay (1966) 1 SCR 64 ). In a case arising out of the Madras General Sales T ax Act, this Court observed that the expression ?any assessment made under this act? is wide enough to cover all assessments made by the appropriate authority under the Act, whether the said assessments are correct or not. (Firm of Illuri Subbaya Chetty and Sons v. State of Andhra Pradesh, AIR 1964 SC 322 ) If the appropriate authority has been given the jurisdiction to determine the nature of the transaction and proceed to levy a tax in accordance with its decision, even if such issue is erroneously determined by the authority, the tax levied by it in accordance with its decision cannot be said to be ‘without jurisdiction?. See (Kamla Mills - supra). 14. Applying the criteria mentioned in Dhulabhai (supra), we are of the opinion that the Civil Court?s jurisdiction is impliedly barred for the following reasons:(i) There is no pre-existing liability of tax under Common Law. The liability has been created by Delhi Municipal Corporation Act along with a remedy by way of an appeal to the Municipal T axation Tribunal. Necessarily, where a party aggrieved by the decision of the authorities has to resort to the remedy provided under the Statute, civil courts? jurisdiction is barred. See (In Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana AIR 1963 SC 1547 , Firm of Illury Subbayya and In Ram Swarup and Ors. v. Shikar Chand AIR 1966 SC 893. (ii) Section 171 of the Act gives finality to orders passed by Municipal T axation Tribunal, which shows the intendment of the legislature to exclude jurisdiction of civil courts. (iii) The remedy provided by Section 169 of the Act is an adequate and effective remedy. We are not in agreement with the High Court that an appeal provided by the Statute against orders of assessments, containing an ‘onerous? pre-condition of deposit of the entire amount in dispute, is not an effective remedy.15. We seek support for these views from a judgement of this Court in Srikant K. Jituri v. Corporation of the City of Belgaum (1994) 6 SCC 572. The question that arose for consideration of this Court in the said judgment was regarding the jurisdiction the civil courts being barred by Rule 25 contained in Part-I of Schedule-III of the Karnataka Municipal Corporations Act, 1976. Resolving the dispute about the maintainability of a civil suit against the order passed by the revisional authority, this Court held that the suit was not maintainable. In the said case, the submission on behalf of the Assessee was that the right to second appeal to the District Court as per the provisions of the Act was coupled with an onerous condition i.e. deposit of the entire amount of property tax. Hence, it was pleaded that the remedy provided under the Act was not adequate. This Court rejected the said submission by holding that the alternate remedy provided by a statute not being an adequate or efficacious remedy, is not a ground for maintaining a civil suit. However, this Court was of the opinion that a Writ Petition under Article 226 is maintainable if the remedy provided in the statute is not efficacious. 16. We have examined the plaint filed by the Respondents carefully. We do not see any allegation made regarding the violation of any provisions of the statute. There is also no pleading with regard to non-compliance of any fundamental provisions of the statute. It is settled law that jurisdiction of the civil courts cannot be completely taken away in spite of either an express or implied bar. The civil courts shall have jurisdiction to examine a matter in which there is an allegation of non-compliance of the provisions of the statute or any of the fundamental principles of judicial procedure. A plain reading of the plaint would suggest that the order impugned in the suit is at the most an erroneous order. No jurisdictional error is pleaded in the plaint. Therefore, the question of maintainability of the suit does not arise. In the absence of any pleadings in the plaint, the High Court ought not to have remanded the matter back to the learned Single Judge. | 1[ds]9. A perusal of the relevant provisions of the Act would show that there is no express bar on the jurisdiction of Courts.We find that a liability for payment of tax is created by the Delhi Municipal Corporation Act, 1957. Further, a remedy by way of an appeal against an order of assessment, before an appropriate forum or authority, has been provided by the same statute.Applying the criteria mentioned in Dhulabhai (supra), we are of the opinion that the Civil Court?s jurisdiction is impliedly barred for the followingThere is no pre-existing liability of tax under Common Law. The liability has been created by Delhi Municipal Corporation Act along with a remedy by way of an appeal to the Municipal T axation Tribunal. Necessarily, where a party aggrieved by the decision of the authorities has to resort to the remedy provided under the Statute, civil courts? jurisdiction is barred. See (In Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana AIR 1963 SC 1547 , Firm of Illury Subbayya and In Ram Swarup and Ors. v. Shikar Chand AIR 1966 SCSection 171 of the Act gives finality to orders passed by Municipal T axation Tribunal, which shows the intendment of the legislature to exclude jurisdiction of civilThe remedy provided by Section 169 of the Act is an adequate and effective remedy. We are not in agreement with the High Court that an appeal provided by the Statute against orders of assessments, containing an ‘onerous? pre-condition of deposit of the entire amount in dispute, is not an effective remedy.We have examined the plaint filed by the Respondents carefully. We do not see any allegation made regarding the violation of any provisions of the statute. There is also no pleading with regard to non-compliance of any fundamental provisions of the statute. It is settled law that jurisdiction of the civil courts cannot be completely taken away in spite of either an express or implied bar. The civil courts shall have jurisdiction to examine a matter in which there is an allegation of non-compliance of the provisions of the statute or any of the fundamental principles of judicial procedure. A plain reading of the plaint would suggest that the order impugned in the suit is at the most an erroneous order. No jurisdictional error is pleaded in the plaint. Therefore, the question of maintainability of the suit does not arise. In the absence of any pleadings in the plaint, the High Court ought not to have remanded the matter back to the learned Single Judge. | 1 | 3,864 | 464 | ### 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:
rights on a class of citizens, should be complete codes by themselves. With that object in view, forums were created under the Acts themselves where grievances could be entertained on behalf of the persons aggrieved (Shiv Kumar Chadha Etc. Etc v. Municipal Corporation of Delhi (1993) 3 SCC 161 ). 11. Wherever a right or liability, not pre-existing in common law is created by a statute and that statute itself provides a machinery for enforcement of such right or liability, both the right/liability and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the jurisdiction of the civil court is impliedly barred (Raja Ram Kumar Bhargava (Dead) By LRs v. Union of India (1988) 1 SCC 681 ). 12. We find that a liability for payment of tax is created by the Delhi Municipal Corporation Act, 1957. Further, a remedy by way of an appeal against an order of assessment, before an appropriate forum or authority, has been provided by the same statute. 13. As to various issues on the correctness of a return itself, or whether or not a return is correct; whether or not transactions which are not mentioned in the return, but about which the appropriate authority has knowledge, fall within the mischief of the charging section; what is the true or real extent of the transactions which are assessable; all these and other allied questions have to be determined by the appropriate authorities themselves. An assessment, based even on an erroneous finding about the character of the transaction, is an assessment made well within jurisdiction and cannot be said to be outside the purview of the Act (Kamala Mills Ltd v. State of Bombay (1966) 1 SCR 64 ). In a case arising out of the Madras General Sales T ax Act, this Court observed that the expression ?any assessment made under this act? is wide enough to cover all assessments made by the appropriate authority under the Act, whether the said assessments are correct or not. (Firm of Illuri Subbaya Chetty and Sons v. State of Andhra Pradesh, AIR 1964 SC 322 ) If the appropriate authority has been given the jurisdiction to determine the nature of the transaction and proceed to levy a tax in accordance with its decision, even if such issue is erroneously determined by the authority, the tax levied by it in accordance with its decision cannot be said to be ‘without jurisdiction?. See (Kamla Mills - supra). 14. Applying the criteria mentioned in Dhulabhai (supra), we are of the opinion that the Civil Court?s jurisdiction is impliedly barred for the following reasons:(i) There is no pre-existing liability of tax under Common Law. The liability has been created by Delhi Municipal Corporation Act along with a remedy by way of an appeal to the Municipal T axation Tribunal. Necessarily, where a party aggrieved by the decision of the authorities has to resort to the remedy provided under the Statute, civil courts? jurisdiction is barred. See (In Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana AIR 1963 SC 1547 , Firm of Illury Subbayya and In Ram Swarup and Ors. v. Shikar Chand AIR 1966 SC 893. (ii) Section 171 of the Act gives finality to orders passed by Municipal T axation Tribunal, which shows the intendment of the legislature to exclude jurisdiction of civil courts. (iii) The remedy provided by Section 169 of the Act is an adequate and effective remedy. We are not in agreement with the High Court that an appeal provided by the Statute against orders of assessments, containing an ‘onerous? pre-condition of deposit of the entire amount in dispute, is not an effective remedy.15. We seek support for these views from a judgement of this Court in Srikant K. Jituri v. Corporation of the City of Belgaum (1994) 6 SCC 572. The question that arose for consideration of this Court in the said judgment was regarding the jurisdiction the civil courts being barred by Rule 25 contained in Part-I of Schedule-III of the Karnataka Municipal Corporations Act, 1976. Resolving the dispute about the maintainability of a civil suit against the order passed by the revisional authority, this Court held that the suit was not maintainable. In the said case, the submission on behalf of the Assessee was that the right to second appeal to the District Court as per the provisions of the Act was coupled with an onerous condition i.e. deposit of the entire amount of property tax. Hence, it was pleaded that the remedy provided under the Act was not adequate. This Court rejected the said submission by holding that the alternate remedy provided by a statute not being an adequate or efficacious remedy, is not a ground for maintaining a civil suit. However, this Court was of the opinion that a Writ Petition under Article 226 is maintainable if the remedy provided in the statute is not efficacious. 16. We have examined the plaint filed by the Respondents carefully. We do not see any allegation made regarding the violation of any provisions of the statute. There is also no pleading with regard to non-compliance of any fundamental provisions of the statute. It is settled law that jurisdiction of the civil courts cannot be completely taken away in spite of either an express or implied bar. The civil courts shall have jurisdiction to examine a matter in which there is an allegation of non-compliance of the provisions of the statute or any of the fundamental principles of judicial procedure. A plain reading of the plaint would suggest that the order impugned in the suit is at the most an erroneous order. No jurisdictional error is pleaded in the plaint. Therefore, the question of maintainability of the suit does not arise. In the absence of any pleadings in the plaint, the High Court ought not to have remanded the matter back to the learned Single Judge.
### Response:
1
### Explanation:
9. A perusal of the relevant provisions of the Act would show that there is no express bar on the jurisdiction of Courts.We find that a liability for payment of tax is created by the Delhi Municipal Corporation Act, 1957. Further, a remedy by way of an appeal against an order of assessment, before an appropriate forum or authority, has been provided by the same statute.Applying the criteria mentioned in Dhulabhai (supra), we are of the opinion that the Civil Court?s jurisdiction is impliedly barred for the followingThere is no pre-existing liability of tax under Common Law. The liability has been created by Delhi Municipal Corporation Act along with a remedy by way of an appeal to the Municipal T axation Tribunal. Necessarily, where a party aggrieved by the decision of the authorities has to resort to the remedy provided under the Statute, civil courts? jurisdiction is barred. See (In Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana AIR 1963 SC 1547 , Firm of Illury Subbayya and In Ram Swarup and Ors. v. Shikar Chand AIR 1966 SCSection 171 of the Act gives finality to orders passed by Municipal T axation Tribunal, which shows the intendment of the legislature to exclude jurisdiction of civilThe remedy provided by Section 169 of the Act is an adequate and effective remedy. We are not in agreement with the High Court that an appeal provided by the Statute against orders of assessments, containing an ‘onerous? pre-condition of deposit of the entire amount in dispute, is not an effective remedy.We have examined the plaint filed by the Respondents carefully. We do not see any allegation made regarding the violation of any provisions of the statute. There is also no pleading with regard to non-compliance of any fundamental provisions of the statute. It is settled law that jurisdiction of the civil courts cannot be completely taken away in spite of either an express or implied bar. The civil courts shall have jurisdiction to examine a matter in which there is an allegation of non-compliance of the provisions of the statute or any of the fundamental principles of judicial procedure. A plain reading of the plaint would suggest that the order impugned in the suit is at the most an erroneous order. No jurisdictional error is pleaded in the plaint. Therefore, the question of maintainability of the suit does not arise. In the absence of any pleadings in the plaint, the High Court ought not to have remanded the matter back to the learned Single Judge.
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T. Fenn Walter Vs. Union Of India | people. Indispensable to that faith is the independence of the judiciary. Any independent and impartial judiciary supplies the reason for the judicial institution; it also gives character and content to the constitutional milieu. ....In the fashioning of the provisions relating to the judiciary, the greatest importance was attached to securing the independence of the Judges, and throughout the Constituent Assembly Debates the most vigorous emphasis was laid on that principle .... The Framers of the Constitution took great pains to ensure that an even better and more effective judicial structure was incorporated in the Constitution, one which would meet the highest expectations of judicial independence." (10) Hon. Bernard L. Shientag in his Benjamin N. Cardozo Memorial Lectures, said : "There can be no Government of law without a fearless, independent judiciary. The independence of the Judge is the chief of all the cardinal judicial virtues. He must be entirely free from all external influence and subservient only to his own conscience." (11) There are ever so many Statutes enacted by the Parliament which provide for a sitting Judge of the High Court to be appointed either as the President, Chairman, or Vice-Chairman of any Tribunal or Commission. Under the Consumer Protection Act, 1986, under Section 16-A, a person who is or has been a Judge of a High Court is eligible for being appointed as the President or Member of the State Consumer Disputes Redressal Forum. The Administrative Tribunals Act, 1985; Railways Claims Tribunal Act, 1987; Special Courts (Trial of Offences Relating to Transcations in Securities) Act, 1992; National Commission for Backward Class Act, 1993 are some of the enactments which contain similar provisions where the Chairman, Member or President shall be either a sitting or a retired Judge of a High Court. Therefore, it cannot be said that a sitting Judge of a High Court shall neither be appointed to any other post nor shall be assigned any other judicial or quasi-judicial work. But, invariably, in all cases, the Chief Justice of the concerned High Court would be consulted in case the appointment is sought of a sitting Judge. Normally, a Judge who is to retire from service shortly may be desirous of accepting any other assignment either as a Chairman, Vice-Chairman or Member of any Commission or Tribunal. But if a sitting Judge is appointed to a regular post of Chairman, Vice-Chairman or Member of a Tribunal and the decision of that authority is subjected to judicial review of the High Court, it may not be an ideal situation. (12) Under the Constitution of India, security of judicial tenure has been provided to the Judges of the superior Courts and they could be removed only as per the proviso prescribed under Article 124(4) of the Constitution on account of proved misbehaviour or incapacity. Sometimes, the sitting Judge who is appointed to the post of Chairman, Vice-Chairman of any Tribunal or Commission would be liable to be removed by the appointing authority. This also is not desirable in view of the constitutional position being occupied by the Judge. (13) Quite often sitting Judges are appointed as Inquiry Commissions. Generally it may not create any difficulty, if the inquiry itself can be conducted without prejudice to other judicial work as a Judge of the superior Court. However, the appointment of Judges to head or chair a Commission of Inquiry or to perform other non-judicial work would create unnecessary burden on the Judges and it would affect the administration of justice. The work of these Commissions takes considerable time and there are several instances where the work of the Commission continued for years. If sitting Judge is appointed, considerable time is lost and the Judge would not be in a position to attend to his regular judicial work. In view of the mounting arrears of cases in superior Courts, it would be difficult to lend services of a Judge for such Commission work. Moreover, the report of the Commission of Inquiry is often stated to have only recommendatory value and the opinions expressed therein are not binding on the Government. Quite often the reports of the Commission are ignored and no follow-up actions are being taken by the Govt. In some matters, when political issues are also involved, even impartiality and objectivity of the Court may sometimes be questioned due to some extraneous and oblique motives. The public image and prestige of the Court as guardian of the Constitution and rule of law has to be maintained. It is desirable that the Judges are not subjected to unwanted criticism on account of appointment as the Inquiry Commission. The image and the authority of the Court, which is of utmost importance, has to be upheld. Justice Harlan F. Stone in a letter as far back as in 1953 wrote : "It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court". (Harvard Law Review (Vol. 87 1953-54)). Keeping in view all these aspects, the appointment of a sitting Judge as a Commission of Inquiry has to be made only on rare occasions if it becomes necessary for the paramount national interest of the country. (14) When a sitting Judge is appointed to another post, which is whole-time and if the decision taken in that capacity is subject to judicial review, it may not be in the best interests of the independence of the judiciary. Sometimes, the additional post held by the Judge may not be of equivalent status or may be under different situations, which may even spell out a master and servant relationship between the Judge and the appointing authority. Even though this may not create any conflict of duty or interest, in these days of multifarious litigation, it is always desirable for the Judge of the superior judiciary to keep away from areas of controversy so that the public confidence in our system is not hampered in any way. | 1[ds](11) There are ever so many Statutes enacted by the Parliament which provide for a sitting Judge of the High Court to be appointed either as the President, Chairman, or Vice-Chairman of any Tribunal or Commission. Under the Consumer Protection Act, 1986, under Section 16-A, a person who is or has been a Judge of a High Court is eligible for being appointed as the President or Member of the State Consumer Disputes Redressal Forum. The Administrative Tribunals Act, 1985; Railways Claims Tribunal Act, 1987; Special Courts (Trial of Offences Relating to Transcations in Securities) Act, 1992; National Commission for Backward Class Act, 1993 are some of the enactments which contain similar provisions where the Chairman, Member or President shall be either a sitting or a retired Judge of a High Court. Therefore, it cannot be said that a sitting Judge of a High Court shall neither be appointed to any other post nor shall be assigned any other judicial or quasi-judicial work. But, invariably, in all cases, the Chief Justice of the concerned High Court would be consulted in case the appointment is sought of a sitting Judge. Normally, a Judge who is to retire from service shortly may be desirous of accepting any other assignment either as a Chairman, Vice-Chairman or Member of any Commission or Tribunal. But if a sitting Judge is appointed to a regular post of Chairman, Vice-Chairman or Member of a Tribunal and the decision of that authority is subjected to judicial review of the High Court, it may not be an ideal situation(12) Under the Constitution of India, security of judicial tenure has been provided to the Judges of the superior Courts and they could be removed only as per the proviso prescribed under Article 124(4) of the Constitution on account of proved misbehaviour or incapacity. Sometimes, the sitting Judge who is appointed to the post of Chairman, Vice-Chairman of any Tribunal or Commission would be liable to be removed by the appointing authority. This also is not desirable in view of the constitutional position being occupied by the Judge(13) Quite often sitting Judges are appointed as Inquiry Commissions. Generally it may not create any difficulty, if the inquiry itself can be conducted without prejudice to other judicial work as a Judge of the superior Court. However, the appointment of Judges to head or chair a Commission of Inquiry or to perform other non-judicial work would create unnecessary burden on the Judges and it would affect the administration of justice. The work of these Commissions takes considerable time and there are several instances where the work of the Commission continued for years. If sitting Judge is appointed, considerable time is lost and the Judge would not be in a position to attend to his regular judicial work. In view of the mounting arrears of cases in superior Courts, it would be difficult to lend services of a Judge for such Commission work. Moreover, the report of the Commission of Inquiry is often stated to have only recommendatory value and the opinions expressed therein are not binding on the Government. Quite often the reports of the Commission are ignored and no follow-up actions are being taken by the Govt(14) When a sitting Judge is appointed to another post, which ise and if the decision taken in that capacity is subject to judicial review, it may not be in the best interests of the independence of the judiciary. Sometimes, the additional post held by the Judge may not be of equivalent status or may be under different situations, which may even spell out a master and servant relationship between the Judge and the appointing authority. Even though this may not create any conflict of duty or interest, in these days of multifarious litigation, it is always desirable for the Judge of the superior judiciary to keep away from areas of controversy so that the public confidence in our system is not hampered in any way. | 1 | 3,672 | 734 | ### 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:
people. Indispensable to that faith is the independence of the judiciary. Any independent and impartial judiciary supplies the reason for the judicial institution; it also gives character and content to the constitutional milieu. ....In the fashioning of the provisions relating to the judiciary, the greatest importance was attached to securing the independence of the Judges, and throughout the Constituent Assembly Debates the most vigorous emphasis was laid on that principle .... The Framers of the Constitution took great pains to ensure that an even better and more effective judicial structure was incorporated in the Constitution, one which would meet the highest expectations of judicial independence." (10) Hon. Bernard L. Shientag in his Benjamin N. Cardozo Memorial Lectures, said : "There can be no Government of law without a fearless, independent judiciary. The independence of the Judge is the chief of all the cardinal judicial virtues. He must be entirely free from all external influence and subservient only to his own conscience." (11) There are ever so many Statutes enacted by the Parliament which provide for a sitting Judge of the High Court to be appointed either as the President, Chairman, or Vice-Chairman of any Tribunal or Commission. Under the Consumer Protection Act, 1986, under Section 16-A, a person who is or has been a Judge of a High Court is eligible for being appointed as the President or Member of the State Consumer Disputes Redressal Forum. The Administrative Tribunals Act, 1985; Railways Claims Tribunal Act, 1987; Special Courts (Trial of Offences Relating to Transcations in Securities) Act, 1992; National Commission for Backward Class Act, 1993 are some of the enactments which contain similar provisions where the Chairman, Member or President shall be either a sitting or a retired Judge of a High Court. Therefore, it cannot be said that a sitting Judge of a High Court shall neither be appointed to any other post nor shall be assigned any other judicial or quasi-judicial work. But, invariably, in all cases, the Chief Justice of the concerned High Court would be consulted in case the appointment is sought of a sitting Judge. Normally, a Judge who is to retire from service shortly may be desirous of accepting any other assignment either as a Chairman, Vice-Chairman or Member of any Commission or Tribunal. But if a sitting Judge is appointed to a regular post of Chairman, Vice-Chairman or Member of a Tribunal and the decision of that authority is subjected to judicial review of the High Court, it may not be an ideal situation. (12) Under the Constitution of India, security of judicial tenure has been provided to the Judges of the superior Courts and they could be removed only as per the proviso prescribed under Article 124(4) of the Constitution on account of proved misbehaviour or incapacity. Sometimes, the sitting Judge who is appointed to the post of Chairman, Vice-Chairman of any Tribunal or Commission would be liable to be removed by the appointing authority. This also is not desirable in view of the constitutional position being occupied by the Judge. (13) Quite often sitting Judges are appointed as Inquiry Commissions. Generally it may not create any difficulty, if the inquiry itself can be conducted without prejudice to other judicial work as a Judge of the superior Court. However, the appointment of Judges to head or chair a Commission of Inquiry or to perform other non-judicial work would create unnecessary burden on the Judges and it would affect the administration of justice. The work of these Commissions takes considerable time and there are several instances where the work of the Commission continued for years. If sitting Judge is appointed, considerable time is lost and the Judge would not be in a position to attend to his regular judicial work. In view of the mounting arrears of cases in superior Courts, it would be difficult to lend services of a Judge for such Commission work. Moreover, the report of the Commission of Inquiry is often stated to have only recommendatory value and the opinions expressed therein are not binding on the Government. Quite often the reports of the Commission are ignored and no follow-up actions are being taken by the Govt. In some matters, when political issues are also involved, even impartiality and objectivity of the Court may sometimes be questioned due to some extraneous and oblique motives. The public image and prestige of the Court as guardian of the Constitution and rule of law has to be maintained. It is desirable that the Judges are not subjected to unwanted criticism on account of appointment as the Inquiry Commission. The image and the authority of the Court, which is of utmost importance, has to be upheld. Justice Harlan F. Stone in a letter as far back as in 1953 wrote : "It has been a long tradition of our Court that its members do not serve on committees or perform other services not having a direct relationship to the work of the Court". (Harvard Law Review (Vol. 87 1953-54)). Keeping in view all these aspects, the appointment of a sitting Judge as a Commission of Inquiry has to be made only on rare occasions if it becomes necessary for the paramount national interest of the country. (14) When a sitting Judge is appointed to another post, which is whole-time and if the decision taken in that capacity is subject to judicial review, it may not be in the best interests of the independence of the judiciary. Sometimes, the additional post held by the Judge may not be of equivalent status or may be under different situations, which may even spell out a master and servant relationship between the Judge and the appointing authority. Even though this may not create any conflict of duty or interest, in these days of multifarious litigation, it is always desirable for the Judge of the superior judiciary to keep away from areas of controversy so that the public confidence in our system is not hampered in any way.
### Response:
1
### Explanation:
(11) There are ever so many Statutes enacted by the Parliament which provide for a sitting Judge of the High Court to be appointed either as the President, Chairman, or Vice-Chairman of any Tribunal or Commission. Under the Consumer Protection Act, 1986, under Section 16-A, a person who is or has been a Judge of a High Court is eligible for being appointed as the President or Member of the State Consumer Disputes Redressal Forum. The Administrative Tribunals Act, 1985; Railways Claims Tribunal Act, 1987; Special Courts (Trial of Offences Relating to Transcations in Securities) Act, 1992; National Commission for Backward Class Act, 1993 are some of the enactments which contain similar provisions where the Chairman, Member or President shall be either a sitting or a retired Judge of a High Court. Therefore, it cannot be said that a sitting Judge of a High Court shall neither be appointed to any other post nor shall be assigned any other judicial or quasi-judicial work. But, invariably, in all cases, the Chief Justice of the concerned High Court would be consulted in case the appointment is sought of a sitting Judge. Normally, a Judge who is to retire from service shortly may be desirous of accepting any other assignment either as a Chairman, Vice-Chairman or Member of any Commission or Tribunal. But if a sitting Judge is appointed to a regular post of Chairman, Vice-Chairman or Member of a Tribunal and the decision of that authority is subjected to judicial review of the High Court, it may not be an ideal situation(12) Under the Constitution of India, security of judicial tenure has been provided to the Judges of the superior Courts and they could be removed only as per the proviso prescribed under Article 124(4) of the Constitution on account of proved misbehaviour or incapacity. Sometimes, the sitting Judge who is appointed to the post of Chairman, Vice-Chairman of any Tribunal or Commission would be liable to be removed by the appointing authority. This also is not desirable in view of the constitutional position being occupied by the Judge(13) Quite often sitting Judges are appointed as Inquiry Commissions. Generally it may not create any difficulty, if the inquiry itself can be conducted without prejudice to other judicial work as a Judge of the superior Court. However, the appointment of Judges to head or chair a Commission of Inquiry or to perform other non-judicial work would create unnecessary burden on the Judges and it would affect the administration of justice. The work of these Commissions takes considerable time and there are several instances where the work of the Commission continued for years. If sitting Judge is appointed, considerable time is lost and the Judge would not be in a position to attend to his regular judicial work. In view of the mounting arrears of cases in superior Courts, it would be difficult to lend services of a Judge for such Commission work. Moreover, the report of the Commission of Inquiry is often stated to have only recommendatory value and the opinions expressed therein are not binding on the Government. Quite often the reports of the Commission are ignored and no follow-up actions are being taken by the Govt(14) When a sitting Judge is appointed to another post, which ise and if the decision taken in that capacity is subject to judicial review, it may not be in the best interests of the independence of the judiciary. Sometimes, the additional post held by the Judge may not be of equivalent status or may be under different situations, which may even spell out a master and servant relationship between the Judge and the appointing authority. Even though this may not create any conflict of duty or interest, in these days of multifarious litigation, it is always desirable for the Judge of the superior judiciary to keep away from areas of controversy so that the public confidence in our system is not hampered in any way.
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National Textile Corporation(Sm) Vs. Associated Building Company | (2) Even on the merits, the High Court was in error in holding that no enforceable right vested in the Custodian under Section 3(2) of the Act to take possession of the premises wherein the registered office of the Tata Mills Ltd. in Bombay House was located. On the other hand, Mr. soli J.Sorabjee, Counsel for petitioners 1 to 5 submitted that the maintainability of the Writ Petition was not put forward before the High Court either in the counter-affidavits failed on during arguments and on the basis averments contained in the affidavits filed, parties joined issue and argued the matter. It is no longer open to the appellant to contend that the parties may be relegated to the ordinary remedy at law to seek redress. He further contended, that on merits, the High Court was justified in holding that the Tata Mills Limited had no enforceable or definite right in the space where the registered office was located in Bombay House and so the Controller was incompetent and could not seek possession on control or unspecified portion of Bombay House. 12. The affidavits filed in the case disclose that when petitioners No.1 and 5 were informed that immediate possession and control of the Tata Mills office at Bombay House will be taken, they promptly replied by communication dated 18.1.1984 that no specific part or portion of the Bombay House was allotted to the Tata Mills Limited, and the Mills were allowed to continue the registered office gratuitously and the records of the company will bear out this fact. The respondents were also informed that the Tata Mills Limited have no right, title or interest whatsoever in any portion of the Bombay House which could be handed over or taken possession of by the Custodian. The over or taken possession of by the Custodian. The respondents did not care to verify the records of the company. The appellant should have gathered material to know the nature of the arrangement by which the registered office of the Tata Mills Limited was functioning in the Bombay House. Since the entire assets of the Tata Mills Limited had vested in the Government, the records should be available with the Custodian. He could have verified the records. He could have asked petitioner No.1 to produce relevant records, if any, available with it in that regard . When objection was taken regarding the basis facts, one would normally expect the respondents to verify the records and then only to proceed further in the matter, or to stay their hands and intimate the parties concerned that they will proceed only in accordance with law. This is the appropriate procedure to be adopted by any public on statutory authority placed in similar circumstances. The respondents totally failed to do so. Such inaction necessarily led to the filing of the Writ Petition. We are of the view that the Writ Petition filed by petitioners No.1 to 5, in the circumstances, is really a defensive action.The fact that petitioners No.1 to 5 figured nominee as Petitioners in the Writ Petition, is irrelevant. The burden is on the respondent to prove that the Tata Mills Limited had any definite and enforceable right in Bombay House which vested in the respondents under Section 3 of the Act and capable of being enforced. This is a basic or jurisdictional f act which should have been proved by the respondents. The plea put forward by the respondents that the occupation of the Tata Mills Limited if a portion of the Bombay House as tenants or that they had any enforceable right or power or asset, was not based on any material. IT was not substantiated at all. The plea of the petitioners stated in their communications dated 18.1.1984 and reiterated in the Writ Petition, was not dis-proved, in the above circumstances, the High Court, in our opinion, correctly reached the conclusion that the action of the respondents by addressing the letter dated 16.1.1984 seeking possession and control of unspecified portion of Bombay House, is without jurisdiction.13. We are of the opinion that the respondents have totally failed to prove that there was any enforceable right or interest of the Tata Mills Ltd. in any portion of the Bombay House, and in the circumstances, no part or portion of the Bombay House, formerly occupied gratuitously by the Tata Mills Limited, vested in the Central Government under Section 3 of the Act. The assumption by the respondents to the contrary is not justified in law.14. It is significant to note that no plea was taken in the counter affidavits filed by the respondents that the Write Petition is not maintainable or that further evidence is required to be taken to adjudicate the rival pleas put forward by the parties. We reject the plea so urged before us for the first time in this appeal. Having chosen to fight to case on the basis of affidavits, it is not open to the appellant to contend that factual aspects involved leading of evidence and the High Court should have declined jurisdiction under Article 226 of the Constitution. The plea that the occupation of the Tata Mills Limited of a portion of the Bombay House was as a tenant or lessee or licensee or that there existed any power or asset, is based on no material, but mere assertion. Respondents had every opportunity to verify the relevant records to ascertain under what arrangement the Tata Mills Limited was occupying the undivided and undemarcated portion of the Bombay house for its registered office. Normally, the records of the T ata Mills Ltd. should be with the Custodian. Even if the relevant records were not available, the respondents could have required of petitioner No. 1 or petitioner No. 5, to produce whatever records were available with them, to probe into the matter further. They failed to do so. Instead, they acted at their ipse dixit to take possession of the premises in Bombay House. This was totally unreasonable and unjustified. | 0[ds]12. The affidavits filed in the case disclose that when petitioners No.1 and 5 were informed that immediate possession and control of the Tata Mills office at Bombay House will be taken, they promptly replied by communication dated 18.1.1984 that no specific part or portion of the Bombay House was allotted to the Tata Mills Limited, and the Mills were allowed to continue the registered office gratuitously and the records of the company will bear out this fact. The respondents were also informed that the Tata Mills Limited have no right, title or interest whatsoever in any portion of the Bombay House which could be handed over or taken possession of by the Custodian. The over or taken possession of by the Custodian. The respondents did not care to verify the records of the company. The appellant should have gathered material to know the nature of the arrangement by which the registered office of the Tata Mills Limited was functioning in the Bombay House. Since the entire assets of the Tata Mills Limited had vested in the Government, the records should be available with the Custodian. He could have verified the records. He could have asked petitioner No.1 to produce relevant records, if any, available with it in that regard . When objection was taken regarding the basis facts, one would normally expect the respondents to verify the records and then only to proceed further in the matter, or to stay their hands and intimate the parties concerned that they will proceed only in accordance with law. This is the appropriate procedure to be adopted by any public on statutory authority placed in similar circumstances. The respondents totally failed to do so. Such inaction necessarily led to the filing of the Writ Petition. We are of the view that the Writ Petition filed by petitioners No.1 to 5, in the circumstances, is really a defensive action.The fact that petitioners No.1 to 5 figured nominee as Petitioners in the Writ Petition, is irrelevant. The burden is on the respondent to prove that the Tata Mills Limited had any definite and enforceable right in Bombay House which vested in the respondents under Section 3 of the Act and capable of being enforced. This is a basic or jurisdictional f act which should have been proved by the respondents. The plea put forward by the respondents that the occupation of the Tata Mills Limited if a portion of the Bombay House as tenants or that they had any enforceable right or power or asset, was not based on any material. IT was not substantiated at all. The plea of the petitioners stated in their communications dated 18.1.1984 and reiterated in the Writ Petition, was not dis-proved, in the above circumstances, the High Court, in our opinion, correctly reached the conclusion that the action of the respondents by addressing the letter dated 16.1.1984 seeking possession and control of unspecified portion of Bombay House, is without jurisdiction.13. We are of the opinion that the respondents have totally failed to prove that there was any enforceable right or interest of the Tata Mills Ltd. in any portion of the Bombay House, and in the circumstances, no part or portion of the Bombay House, formerly occupied gratuitously by the Tata Mills Limited, vested in the Central Government under Section 3 of the Act. The assumption by the respondents to the contrary is not justified in law.14. It is significant to note that no plea was taken in the counter affidavits filed by the respondents that the Write Petition is not maintainable or that further evidence is required to be taken to adjudicate the rival pleas put forward by the parties. We reject the plea so urged before us for the first time in this appeal. Having chosen to fight to case on the basis of affidavits, it is not open to the appellant to contend that factual aspects involved leading of evidence and the High Court should have declined jurisdiction under Article 226 of the Constitution. The plea that the occupation of the Tata Mills Limited of a portion of the Bombay House was as a tenant or lessee or licensee or that there existed any power or asset, is based on no material, but mere assertion. Respondents had every opportunity to verify the relevant records to ascertain under what arrangement the Tata Mills Limited was occupying the undivided and undemarcated portion of the Bombay house for its registered office. Normally, the records of the T ata Mills Ltd. should be with the Custodian. Even if the relevant records were not available, the respondents could have required of petitioner No. 1 or petitioner No. 5, to produce whatever records were available with them, to probe into the matter further. They failed to do so. Instead, they acted at their ipse dixit to take possession of the premises in Bombay House. This was totally unreasonable and unjustified. | 0 | 4,324 | 885 | ### 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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(2) Even on the merits, the High Court was in error in holding that no enforceable right vested in the Custodian under Section 3(2) of the Act to take possession of the premises wherein the registered office of the Tata Mills Ltd. in Bombay House was located. On the other hand, Mr. soli J.Sorabjee, Counsel for petitioners 1 to 5 submitted that the maintainability of the Writ Petition was not put forward before the High Court either in the counter-affidavits failed on during arguments and on the basis averments contained in the affidavits filed, parties joined issue and argued the matter. It is no longer open to the appellant to contend that the parties may be relegated to the ordinary remedy at law to seek redress. He further contended, that on merits, the High Court was justified in holding that the Tata Mills Limited had no enforceable or definite right in the space where the registered office was located in Bombay House and so the Controller was incompetent and could not seek possession on control or unspecified portion of Bombay House. 12. The affidavits filed in the case disclose that when petitioners No.1 and 5 were informed that immediate possession and control of the Tata Mills office at Bombay House will be taken, they promptly replied by communication dated 18.1.1984 that no specific part or portion of the Bombay House was allotted to the Tata Mills Limited, and the Mills were allowed to continue the registered office gratuitously and the records of the company will bear out this fact. The respondents were also informed that the Tata Mills Limited have no right, title or interest whatsoever in any portion of the Bombay House which could be handed over or taken possession of by the Custodian. The over or taken possession of by the Custodian. The respondents did not care to verify the records of the company. The appellant should have gathered material to know the nature of the arrangement by which the registered office of the Tata Mills Limited was functioning in the Bombay House. Since the entire assets of the Tata Mills Limited had vested in the Government, the records should be available with the Custodian. He could have verified the records. He could have asked petitioner No.1 to produce relevant records, if any, available with it in that regard . When objection was taken regarding the basis facts, one would normally expect the respondents to verify the records and then only to proceed further in the matter, or to stay their hands and intimate the parties concerned that they will proceed only in accordance with law. This is the appropriate procedure to be adopted by any public on statutory authority placed in similar circumstances. The respondents totally failed to do so. Such inaction necessarily led to the filing of the Writ Petition. We are of the view that the Writ Petition filed by petitioners No.1 to 5, in the circumstances, is really a defensive action.The fact that petitioners No.1 to 5 figured nominee as Petitioners in the Writ Petition, is irrelevant. The burden is on the respondent to prove that the Tata Mills Limited had any definite and enforceable right in Bombay House which vested in the respondents under Section 3 of the Act and capable of being enforced. This is a basic or jurisdictional f act which should have been proved by the respondents. The plea put forward by the respondents that the occupation of the Tata Mills Limited if a portion of the Bombay House as tenants or that they had any enforceable right or power or asset, was not based on any material. IT was not substantiated at all. The plea of the petitioners stated in their communications dated 18.1.1984 and reiterated in the Writ Petition, was not dis-proved, in the above circumstances, the High Court, in our opinion, correctly reached the conclusion that the action of the respondents by addressing the letter dated 16.1.1984 seeking possession and control of unspecified portion of Bombay House, is without jurisdiction.13. We are of the opinion that the respondents have totally failed to prove that there was any enforceable right or interest of the Tata Mills Ltd. in any portion of the Bombay House, and in the circumstances, no part or portion of the Bombay House, formerly occupied gratuitously by the Tata Mills Limited, vested in the Central Government under Section 3 of the Act. The assumption by the respondents to the contrary is not justified in law.14. It is significant to note that no plea was taken in the counter affidavits filed by the respondents that the Write Petition is not maintainable or that further evidence is required to be taken to adjudicate the rival pleas put forward by the parties. We reject the plea so urged before us for the first time in this appeal. Having chosen to fight to case on the basis of affidavits, it is not open to the appellant to contend that factual aspects involved leading of evidence and the High Court should have declined jurisdiction under Article 226 of the Constitution. The plea that the occupation of the Tata Mills Limited of a portion of the Bombay House was as a tenant or lessee or licensee or that there existed any power or asset, is based on no material, but mere assertion. Respondents had every opportunity to verify the relevant records to ascertain under what arrangement the Tata Mills Limited was occupying the undivided and undemarcated portion of the Bombay house for its registered office. Normally, the records of the T ata Mills Ltd. should be with the Custodian. Even if the relevant records were not available, the respondents could have required of petitioner No. 1 or petitioner No. 5, to produce whatever records were available with them, to probe into the matter further. They failed to do so. Instead, they acted at their ipse dixit to take possession of the premises in Bombay House. This was totally unreasonable and unjustified.
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### Explanation:
12. The affidavits filed in the case disclose that when petitioners No.1 and 5 were informed that immediate possession and control of the Tata Mills office at Bombay House will be taken, they promptly replied by communication dated 18.1.1984 that no specific part or portion of the Bombay House was allotted to the Tata Mills Limited, and the Mills were allowed to continue the registered office gratuitously and the records of the company will bear out this fact. The respondents were also informed that the Tata Mills Limited have no right, title or interest whatsoever in any portion of the Bombay House which could be handed over or taken possession of by the Custodian. The over or taken possession of by the Custodian. The respondents did not care to verify the records of the company. The appellant should have gathered material to know the nature of the arrangement by which the registered office of the Tata Mills Limited was functioning in the Bombay House. Since the entire assets of the Tata Mills Limited had vested in the Government, the records should be available with the Custodian. He could have verified the records. He could have asked petitioner No.1 to produce relevant records, if any, available with it in that regard . When objection was taken regarding the basis facts, one would normally expect the respondents to verify the records and then only to proceed further in the matter, or to stay their hands and intimate the parties concerned that they will proceed only in accordance with law. This is the appropriate procedure to be adopted by any public on statutory authority placed in similar circumstances. The respondents totally failed to do so. Such inaction necessarily led to the filing of the Writ Petition. We are of the view that the Writ Petition filed by petitioners No.1 to 5, in the circumstances, is really a defensive action.The fact that petitioners No.1 to 5 figured nominee as Petitioners in the Writ Petition, is irrelevant. The burden is on the respondent to prove that the Tata Mills Limited had any definite and enforceable right in Bombay House which vested in the respondents under Section 3 of the Act and capable of being enforced. This is a basic or jurisdictional f act which should have been proved by the respondents. The plea put forward by the respondents that the occupation of the Tata Mills Limited if a portion of the Bombay House as tenants or that they had any enforceable right or power or asset, was not based on any material. IT was not substantiated at all. The plea of the petitioners stated in their communications dated 18.1.1984 and reiterated in the Writ Petition, was not dis-proved, in the above circumstances, the High Court, in our opinion, correctly reached the conclusion that the action of the respondents by addressing the letter dated 16.1.1984 seeking possession and control of unspecified portion of Bombay House, is without jurisdiction.13. We are of the opinion that the respondents have totally failed to prove that there was any enforceable right or interest of the Tata Mills Ltd. in any portion of the Bombay House, and in the circumstances, no part or portion of the Bombay House, formerly occupied gratuitously by the Tata Mills Limited, vested in the Central Government under Section 3 of the Act. The assumption by the respondents to the contrary is not justified in law.14. It is significant to note that no plea was taken in the counter affidavits filed by the respondents that the Write Petition is not maintainable or that further evidence is required to be taken to adjudicate the rival pleas put forward by the parties. We reject the plea so urged before us for the first time in this appeal. Having chosen to fight to case on the basis of affidavits, it is not open to the appellant to contend that factual aspects involved leading of evidence and the High Court should have declined jurisdiction under Article 226 of the Constitution. The plea that the occupation of the Tata Mills Limited of a portion of the Bombay House was as a tenant or lessee or licensee or that there existed any power or asset, is based on no material, but mere assertion. Respondents had every opportunity to verify the relevant records to ascertain under what arrangement the Tata Mills Limited was occupying the undivided and undemarcated portion of the Bombay house for its registered office. Normally, the records of the T ata Mills Ltd. should be with the Custodian. Even if the relevant records were not available, the respondents could have required of petitioner No. 1 or petitioner No. 5, to produce whatever records were available with them, to probe into the matter further. They failed to do so. Instead, they acted at their ipse dixit to take possession of the premises in Bombay House. This was totally unreasonable and unjustified.
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E.P. Royappa Vs. State of Tamil Nadu & Another | The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up - these considerations are wholly irrelevant in judicial approach - but because otherwise, functioning effectively would become difficult in a democracy. It is from this stand-point that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.98. Now extensive arguments were addressed before us by counsel on both sides and we were taken through a mass of documents, papers and official notings on this part of the case but we are afraid it is not possible for us to say that the onus of establishing mala fides against the second respondent heavy as it is, has been discharged by the petitioner. The allegations of mala fides in the judgment of the learned Chief Justice and we do not think it will serve any useful purpose for us to discuss the merits of those allegations once again in this judgment, as we are substantially in agreement with what the learned Chief Justice has said. But we cannot help mentioning that there are certain disturbing features which cause us anxiety. We may take by example the imputation in regard to the Coom River Project. It seems that in or about the beginning of February 1970 the second respondent asked the Director of Vigilance to look into the affairs relating to Coom Improvement Project as he apprehended that there were certain malpractices in the execution of that scheme. Whether this was done by the second respondent on his own initiative or at the instance of the petitioner is immaterial and we need not go into that controversy. The Director of Vigilance, as his subsequent letter dated 25th February, 1970 shows, informed the second respondent that without a discreet inquiry it would not be possible to allay or confirm the apprehensions with any degree of credibility since the head of the concerned engineering department was personally involved in the execution of the scheme and he accordingly by that letter pointed out to the petitioner that he needed authorisation to embark on the inquiry and Government order in that behalf should therefore be obtained and communicated to him. The petitioner made an endorsement on this letter on the very next day with a remark that the Public (Secret / Confidential) Department should deal with it immediately. The Public (Secret / Confidential) Department prepared a note at the foot of the letter and submitted it for circulation to the Minister for Works and the second respondent for orders whether the Director of Vigilance should be requested to make a discreet inquiry and send his report. The endorsement made below the note shows that it was submitted for circulation on 3rd March, 1970. It appears however, that this note remained unattended until the middle of September 1970. On 12th September, 1970 the Minister for Works made on endorsement that the Director of Vigilance may make a discreet inquiry and this endorsement was approved by the second respondent on 20th September, 1970. The file containing the note together with the endorsements of the Minister for works and the second respondent was thereafter placed before the petitioner along with a draft of the memorandum of be addressed by the petitioner to the Director of Vigilance.99. It is common ground that no memorandum in terms of this draft was issued by the petitioner to the Director of Vigilance. The case of the petitioner was that he did not do so because the second respondent subsequently ordered that no inquiry need be made in this matter. This position was disputed by the second respondent who stated that to the best of his recollection he did not make any such order canceling the inquiry. That is a matter of controversy between the parties and as pointed out above it does not fall within our province to investigate it. But the fact remains, and that cannot be disputed, that no inquiry thereafter took place in the affairs of the Coom Improvement Scheme. It is a little interesting to note that Sabanayagam addressed a letter dated 31st July, 1971 to the petitioner stating that though the Personal Assistant to the Chief Secretary had been reminded to send back the file relating to this matter, it had not been received and the petitioner should arrange to send it back, if it was with him. The petitioner immediately replied to this letter on 8th August, 1971 pointing out that he distinctly remembered that the second respondent had subsequently ordered that no inquiry need be made in this matter and the file was not with him. It is significant that though the petitioner stated categorically that the second respondent had subsequently ordered that no inquiry need be made, Sabanayagam did not write back challenging the correctness of this statement. The file pertaining to this matter was all throughout in the possession of the Government and even after the petitioner pointed out that it was not with him, curiously enough it could not be traced until the filing of the petition. In fact, the absence of the file could not have stood in the way of ordering an inquiry. These and a few other circumstances do create suspicion but suspicion cannot take the place of proof and, as pointed out above, proof needed here is high degree of proof. We cannot say that evidence generating judicial certitude in upholding the plea of mala fides has been placed before us in the present case. We must, therefore, reject this contention of the petitioner as well.100. | 0[ds]10. It thus appears that the Chief Ministers Note as well as the draft order stated that the petitioner was promoted and posted as Chief Secretary. But the Gazettee Notification dated 13 November, 1969 was that the petitioner was "promoted and posted to act as Chief Secretary to the Government vice C.A. Ramakrishnan, who has been granted refused leave with effect from 14 November, 1969". The Gazette notification prevails over the draftwho was on refused leave being a member of the Indian Civil Service, was entitled under Article 314 of the Constitution to conditions of service as respects remuneration, leave and pension to which members of the Civil Service were entitled immediately before the commencement of the Constitution. Fundamental Rule 13 (d) as it stood prior to the commencement of the Constitution provided for the retention of lien on a permanent post while on leave without making any exception with regard to refused leave. Fundamental Rule 86 as it stood prior to the commencement of the Constitution did not contain any provision to the effect that the grant of refused leave would not amount to extension of service. The Government of India, Finance Department Notification No. 520-CER dated 31 May, 1922 contained the Government decision that the grant of leave under Fundamental Rule 86 automatically carried with it the extension required and no formal sanction to the extension was necessary. The effect of Fundamental Rules 86 and 13 (d) as they stood prior to the commencement of the Constitution is that an Officer does not continue on duty but draws leave salary by virtue of a privilege granted to him. There is no formal extension of service. He retains lien on his post. The post cannot be substantively filled till he actually retires from service.15. The Fundamental Rules of the Madras Government corrected upto 30 June, 1966 issued by the Finance Department, 2nd Ed. 1966 at pages 133-134 contain a note appended to Fundamental Rule 56 of Tamil Nadu State Government. In that note an exception in respect of Indian Civil Service Officers is created by providing that in the case of an Officer of the former Secretary of State Service the grant of such leave shall be treated as sanctioning as extension of service upto the date on which the leave expires. Therefore, Ramakrishnan held lien on his post until 14 March, 1970.16. The petitioner in the note for circulation dated 14/16 November, 1970 prepared by the Joint Secretary, Finance Department, noted that the date of retirement of Ramakrishnan would take effect from the date of expiry of the refused leave namely, 14 March, 1970. That is why the petitioner asked to be confirmed as Chief Secretary with effect from 14 March, 1970. The petitioner was, however, not confirmed in the post. Therefore, the petitioner was not substantively appointed the post of Chief Secretary. The petitioners substantive appointment was in the selection grade of Rs. 1800-2000. The petitioner during the period of refused leave of Ramakrishnan acted as Chief Secretary by way of a temporary arrangement. The petitioner did not have any right to hold the post of Chieftherefore, follows that the strength and composition of the cadre shall be determined by regulations made by the Central Government in consultation with the State Government. The State Government alone cannot alter the strength and composition of the cadre.18. The aforementioned second proviso to rule 4 (2) of the Cadre Rules does not confer any power on the State Government to alter the strength and composition of the cadre. If such power were conferred on the State examination of the strength and composition at the interval of every three years by the Central Government in consultation with the State Government would be nullified. The meaning of the second proviso to Rs. 4 (2) is that the State Government may add for a period mentioned there to the cadre one or more posts carrying duties and responsibilities of the like nature of a cadre posts. The posts so added do not become cadre posts. There temporary posts do not increase the strength of the Cadre. The addition of the post of Deputy Chairman, Planning Commission or Officer on Special Duty to the Indian Administrative Service Cadre of Tamil Nadu State is not permissible because that would result in altering the strength and composition of the Cadre. The State has no such power within the second proviso to Rule 4 (2) of the Cadrethe post of Deputy Chairman, Planning Commission, carried a pay of Rs. 3500/- per month when the petitioner was appointed as Deputy Chairman of the Planning Commission. The upgrading an the downgrading of the post of Deputy Chairman, Planning Commission alleged by the petitioner is not correct. The post was not upgraded or downgraded. The incumbent of the post carried a higher or a lower salary according to the salary enjoyed by the incumbent at the time of the appointment.The petitioner had worked as Deputy Commissioner of Commercial Taxes and subsequently as Secretary to Government Revenue Department dealing with Commercial Taxes also. The petitioner was also Commissioner, Board of Revenue in charge of Commercial Taxes. In view of the wide experience of the petitioner in the field of commercial taxes the Government decided to post him as Officer on Special Duty. This was neither unjust nor unfair nor mala fide. There was no reduction in rank. The petitioners status as well as pay was in conformity with the Rules.35. The petitioner could not claim that till retirement he must continue to act in the post of the Chief Secretary. The order of transfer were passed in the administrative exigencies.36. The member of Indian Administrative Service and particularly those who are in the high posts are described as the steel framework of the Administration. The smooth and sound administration of the country depends on the sense of security and stability of the officers. These officers should not be made to feel that their position or posts are precarious with the change of Government. Their service must be completely free from the fear or threat of arbitrary act of the authorities. Similarly, the members of the Service should keep themselves isolated from turmoils of political parties. It is this sense of disinterestedness and detached devotion to duty which has to be recognised and rewarded.The Minister for Co-operation denied that he asked the petitioner to modify any note. The Chief Minister denied that he ever asked for and modification in the note. The Chief Minister further alleges in the affidavits that there is no note written by the petitioner suggesting the launching of prosecution against Mudaliar. Both the Chief Minister and the Minister for Co-operation state in their affidavit that action has been taken and is being pursued against all the persons concerned relating to the affairs of the Federation. The petitioners suggestion was accepted. There is no occasion for vindictiveness.42. The petitioners allegation that the Chief Minister expressed annoyance at the petitioners note against Mudaliar for causing hazards by discharge of effluent from the distillery is belied by the action taken by the Government. The petitioner in his note suggested a joint inspection and satisfactory arrangement for treatment of the effluent in accordance with the recommendation of the Water and Sewage Advisory Committee. The petitioners proposal was accepted. The petitioners also recommended implementation of a plant scheme on pain of cancellation of licence. Industrial alcohol is manufactured in the distillery. This product is required by the cordite factory of the Defence Department and for pharmaceutical, medicinal and industrial products. The petitioners recommendation to close the distillery would not only have unemployment of a large section but created also lose of important products. The way the affairs of the distillery were handled according to the suggestion and recommendation of the petitioner does not disclose any evidence of mala fide on the part of the Government.These facts in relation to Vaithialingam indicates that the petitioner was not only a party to all the decisions but also he was responsible for the decision taken by the Government. There is no ground whatever for attributing bad faith or improper motive to the Government against the petitioner.The affidavit evidence indicates that the petitioner carried out normal duties and exercised care and caution at the time of the election. That is expected of all officers. It is also expected that officers will maintain a balanced and firm hand in regard administration. Civil servants are expected to advise Ministers in the context of files and rules. The Government and Ministers are also expected to maintain a balanced and impersonal attitude in regard to law and order situation as well as advice given by civil servants. In the present case, it appears that the petitioner gave advice in course of duty. The Government practically in all cases accepted the advice of the petitioner. There does not appear any instance of acrimony or dis agreement between the Government and the petitioner. There are no records to suggest that the petitioner advised one way and the Government acted in an opposite manner.70. The events alleged at the time of the elections are in aid of the petitioners contension that his dealing of the law and order situation was so firm that the Chief Minister and other members of his party became alienated. The petitioner suggested that the Chief Minister and the members of his party were responsible for introducing violence and intimidation. The further suggestion of the petitioner is that the petitioner exposed the activities of the D.M.K. Party, Complaints against the D.M.K. Party were like complaints against other political parties. The affidavit evidence indicates that the law and order situation was kept under normal control. All the officers of the State including the police service discharged their duty in the best interest of administration as also in public interest. The petitioner did not achive anything extraordinary. As the Chief Secretary it was the duty of the petitioner went out of control. The Chief Minister and the members of his party cannot be said on the affidavit evidence to have committed acts of violence or intimidation. The entire affidavit evidence establishes beyond any measure of doubt that the petitioners allegations imputing mala fides against the Chief Minister are baseless. The petitioners allegations were in aid of suggesting vindictiveness and vengeance on part of the Chief Minister. Facts and circumstances repel any such insinuation andmost significant feature in the allegations of mala fides is that when on 7 April, 1971 the petitioner was appointed to act as Deputy Chairman, Planning and he went on leave he did not at any stage anywhere that the order was made mala fide. The first letter where the petitioner alleged mala fides is dated 7 June, 1972. The allegation of mala fides are not contemporaneous but after-thoughts at a distance of one year. That was when the petitioner returned from leave after one year and he was appointed to the post of Deputy Chairman, Planning Commission. Even in that letter the only allegation about mala fide is that the petitioner took strong steps about maintenance of law and order at the time of the elections in 1971 against the views of the Chief Minister and the Ministers. It, therefore, follows that until the petition was filed in the month of July, 1972 the respondents of mala fide made in the petition. Therefore, when the impugned order was made on 26/27 June, 1972 it is manifest that the Government did not make the order out of any improper motive or any indecent haste or out of any ingenious inspiration to get rid of the petitioner. Another noticeable feature in the allegations of mala fides is that the petitioner all throughout describes himself as a person who acted without any fear or favour and enjoyed the reputation of being a strict and honest officer, and, therefore, the Government contrived to remove the petitioner from the post of Chief Secretary. Honest and fearless cadre officers are not unknown and rare as the petitioner suggests. Nor are intrepid officers in cadre posts thrown out of office because of expression of views about law and order situation. In the petition the petitioner has ascribed to the Chief Minister, the Governor and a few other Ministers certain statements having been made by them. The statements are quoted to be words of mouth of the Chief Minister or the Governor or the Ministers. The petitioner has nowhere made contemporaneous entry or record of such utterances. It is difficult to believe that the petitioner would remember identical words in long sequence and set them out with exactitude in the petition. These allegations are made in the petition for the purpose of giving semblance of truth and lending colour to chronicle. | 0 | 24,382 | 2,287 | ### Instruction:
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The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up - these considerations are wholly irrelevant in judicial approach - but because otherwise, functioning effectively would become difficult in a democracy. It is from this stand-point that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.98. Now extensive arguments were addressed before us by counsel on both sides and we were taken through a mass of documents, papers and official notings on this part of the case but we are afraid it is not possible for us to say that the onus of establishing mala fides against the second respondent heavy as it is, has been discharged by the petitioner. The allegations of mala fides in the judgment of the learned Chief Justice and we do not think it will serve any useful purpose for us to discuss the merits of those allegations once again in this judgment, as we are substantially in agreement with what the learned Chief Justice has said. But we cannot help mentioning that there are certain disturbing features which cause us anxiety. We may take by example the imputation in regard to the Coom River Project. It seems that in or about the beginning of February 1970 the second respondent asked the Director of Vigilance to look into the affairs relating to Coom Improvement Project as he apprehended that there were certain malpractices in the execution of that scheme. Whether this was done by the second respondent on his own initiative or at the instance of the petitioner is immaterial and we need not go into that controversy. The Director of Vigilance, as his subsequent letter dated 25th February, 1970 shows, informed the second respondent that without a discreet inquiry it would not be possible to allay or confirm the apprehensions with any degree of credibility since the head of the concerned engineering department was personally involved in the execution of the scheme and he accordingly by that letter pointed out to the petitioner that he needed authorisation to embark on the inquiry and Government order in that behalf should therefore be obtained and communicated to him. The petitioner made an endorsement on this letter on the very next day with a remark that the Public (Secret / Confidential) Department should deal with it immediately. The Public (Secret / Confidential) Department prepared a note at the foot of the letter and submitted it for circulation to the Minister for Works and the second respondent for orders whether the Director of Vigilance should be requested to make a discreet inquiry and send his report. The endorsement made below the note shows that it was submitted for circulation on 3rd March, 1970. It appears however, that this note remained unattended until the middle of September 1970. On 12th September, 1970 the Minister for Works made on endorsement that the Director of Vigilance may make a discreet inquiry and this endorsement was approved by the second respondent on 20th September, 1970. The file containing the note together with the endorsements of the Minister for works and the second respondent was thereafter placed before the petitioner along with a draft of the memorandum of be addressed by the petitioner to the Director of Vigilance.99. It is common ground that no memorandum in terms of this draft was issued by the petitioner to the Director of Vigilance. The case of the petitioner was that he did not do so because the second respondent subsequently ordered that no inquiry need be made in this matter. This position was disputed by the second respondent who stated that to the best of his recollection he did not make any such order canceling the inquiry. That is a matter of controversy between the parties and as pointed out above it does not fall within our province to investigate it. But the fact remains, and that cannot be disputed, that no inquiry thereafter took place in the affairs of the Coom Improvement Scheme. It is a little interesting to note that Sabanayagam addressed a letter dated 31st July, 1971 to the petitioner stating that though the Personal Assistant to the Chief Secretary had been reminded to send back the file relating to this matter, it had not been received and the petitioner should arrange to send it back, if it was with him. The petitioner immediately replied to this letter on 8th August, 1971 pointing out that he distinctly remembered that the second respondent had subsequently ordered that no inquiry need be made in this matter and the file was not with him. It is significant that though the petitioner stated categorically that the second respondent had subsequently ordered that no inquiry need be made, Sabanayagam did not write back challenging the correctness of this statement. The file pertaining to this matter was all throughout in the possession of the Government and even after the petitioner pointed out that it was not with him, curiously enough it could not be traced until the filing of the petition. In fact, the absence of the file could not have stood in the way of ordering an inquiry. These and a few other circumstances do create suspicion but suspicion cannot take the place of proof and, as pointed out above, proof needed here is high degree of proof. We cannot say that evidence generating judicial certitude in upholding the plea of mala fides has been placed before us in the present case. We must, therefore, reject this contention of the petitioner as well.100.
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against all the persons concerned relating to the affairs of the Federation. The petitioners suggestion was accepted. There is no occasion for vindictiveness.42. The petitioners allegation that the Chief Minister expressed annoyance at the petitioners note against Mudaliar for causing hazards by discharge of effluent from the distillery is belied by the action taken by the Government. The petitioner in his note suggested a joint inspection and satisfactory arrangement for treatment of the effluent in accordance with the recommendation of the Water and Sewage Advisory Committee. The petitioners proposal was accepted. The petitioners also recommended implementation of a plant scheme on pain of cancellation of licence. Industrial alcohol is manufactured in the distillery. This product is required by the cordite factory of the Defence Department and for pharmaceutical, medicinal and industrial products. The petitioners recommendation to close the distillery would not only have unemployment of a large section but created also lose of important products. The way the affairs of the distillery were handled according to the suggestion and recommendation of the petitioner does not disclose any evidence of mala fide on the part of the Government.These facts in relation to Vaithialingam indicates that the petitioner was not only a party to all the decisions but also he was responsible for the decision taken by the Government. There is no ground whatever for attributing bad faith or improper motive to the Government against the petitioner.The affidavit evidence indicates that the petitioner carried out normal duties and exercised care and caution at the time of the election. That is expected of all officers. It is also expected that officers will maintain a balanced and firm hand in regard administration. Civil servants are expected to advise Ministers in the context of files and rules. The Government and Ministers are also expected to maintain a balanced and impersonal attitude in regard to law and order situation as well as advice given by civil servants. In the present case, it appears that the petitioner gave advice in course of duty. The Government practically in all cases accepted the advice of the petitioner. There does not appear any instance of acrimony or dis agreement between the Government and the petitioner. There are no records to suggest that the petitioner advised one way and the Government acted in an opposite manner.70. The events alleged at the time of the elections are in aid of the petitioners contension that his dealing of the law and order situation was so firm that the Chief Minister and other members of his party became alienated. The petitioner suggested that the Chief Minister and the members of his party were responsible for introducing violence and intimidation. The further suggestion of the petitioner is that the petitioner exposed the activities of the D.M.K. Party, Complaints against the D.M.K. Party were like complaints against other political parties. The affidavit evidence indicates that the law and order situation was kept under normal control. All the officers of the State including the police service discharged their duty in the best interest of administration as also in public interest. The petitioner did not achive anything extraordinary. As the Chief Secretary it was the duty of the petitioner went out of control. The Chief Minister and the members of his party cannot be said on the affidavit evidence to have committed acts of violence or intimidation. The entire affidavit evidence establishes beyond any measure of doubt that the petitioners allegations imputing mala fides against the Chief Minister are baseless. The petitioners allegations were in aid of suggesting vindictiveness and vengeance on part of the Chief Minister. Facts and circumstances repel any such insinuation andmost significant feature in the allegations of mala fides is that when on 7 April, 1971 the petitioner was appointed to act as Deputy Chairman, Planning and he went on leave he did not at any stage anywhere that the order was made mala fide. The first letter where the petitioner alleged mala fides is dated 7 June, 1972. The allegation of mala fides are not contemporaneous but after-thoughts at a distance of one year. That was when the petitioner returned from leave after one year and he was appointed to the post of Deputy Chairman, Planning Commission. Even in that letter the only allegation about mala fide is that the petitioner took strong steps about maintenance of law and order at the time of the elections in 1971 against the views of the Chief Minister and the Ministers. It, therefore, follows that until the petition was filed in the month of July, 1972 the respondents of mala fide made in the petition. Therefore, when the impugned order was made on 26/27 June, 1972 it is manifest that the Government did not make the order out of any improper motive or any indecent haste or out of any ingenious inspiration to get rid of the petitioner. Another noticeable feature in the allegations of mala fides is that the petitioner all throughout describes himself as a person who acted without any fear or favour and enjoyed the reputation of being a strict and honest officer, and, therefore, the Government contrived to remove the petitioner from the post of Chief Secretary. Honest and fearless cadre officers are not unknown and rare as the petitioner suggests. Nor are intrepid officers in cadre posts thrown out of office because of expression of views about law and order situation. In the petition the petitioner has ascribed to the Chief Minister, the Governor and a few other Ministers certain statements having been made by them. The statements are quoted to be words of mouth of the Chief Minister or the Governor or the Ministers. The petitioner has nowhere made contemporaneous entry or record of such utterances. It is difficult to believe that the petitioner would remember identical words in long sequence and set them out with exactitude in the petition. These allegations are made in the petition for the purpose of giving semblance of truth and lending colour to chronicle.
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Gopal Saran Vs. Satyanarayana | Court in Dr. Vijay Kumar v. Raghbir Singh Anokh Singh ((1973) 2 SCC 597 ) may be referred to. There the Rend Controller had found that the appellants had partitioned the shop in question in two portions. The two portions were demarcated by a wooden partition wall. In one portion there was the clinic of the first appellant and in the other portion, the other appellant was carrying on the business of sale and purchase of motor cars. The wooden partition wall had divided the single shop into two parts so that there were now two doors, one in the portion in the occupation of the first appellant, and the other portion in occupation of the other appellant. One could not go directly from one portion to the other on account of the wooden partition wall. The first appellant locked his portion. On these findings, the Rent Controller had held that the second and third appellants were in exclusive possession of their portions. Hence he came to the conclusion that the firsts appellant had parted with the possession of his portion to them. The Rent Controller did not accept the plea of the appellants that the business which was being carried on in their portion was the joint business of the appellants. The first appellant was assessed to income tax. He had never shown the income from the motor business in his income-tax returns. The appellants did not produce the account books. The Rent Controller accordingly held that the plea of joint business had not been established. It was argued before this Court that the first appellant being the father of the other two appellants established them in business and permitted them to occupy a half portion of the shop for that purpose. As a father, it was submitted, it was natural for him to establish his sons in life. In short, the argument was that the second and third appellants were occupying the half portion with his permission. This Court held that that was a plausible argument but they were unable to entertain this at a letter stage in the Supreme Court and further held that the new plea was not a pleading of law but was a plea in fact. 17. In B. M. Lall v. Dunlop Rubber & Co. Ltd. ((1968) 1 SCR 23 : AIR 1968 SC 175 ) a distinction between the lease and licence was emphasised. See the observations at page 27 of the report. There was in the facts and circumstances of the case no grant of interest in land in favour of the advertiser: "18. In Rajbir Kaur v. S. Chekesiri and Co. ((1989) 1 SCC 19 : AIR 1988 SC 1845 ) it was emphasised that it was the operative intention which is important." 19. In Dipak Banerjee v. Smt. Lilabati Chakraborty ((1987) 4 SCC 161 ) it was reiterated that in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly, the right must be in lieu of payment of some compensation or rent. In this case, the tenant or the sub-tenant did not have any exclusive possession or interest in the building or in any part of the building nor was that right in lieu of any payment or any compensation, on the basis of the facts as indicated hereinafter. 20. From the aforesaid, it appears to us that the question whether there is a tenancy or licence or parting with possession in a particular case must depend upon the quality of occupation given to the licensee or the transferee. Mere occupation is not sufficient, in our opinion, to infer either sub-tenancy or parting with possession. In Associated Hotel of India Ltd. Delhi v. S. B. Sardar Ranjit Singh ((1968) 2 SCR 548 : AIR 1968 SC 933 ) it was held on the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is whether the landlord retained control over the apartment. Similarly, it was held by this Court in Krishnawati v. Hans Raj ((1974) 1 SCC 289 : (1974) 2 SCR 524 ) that sub-letting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee. If two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, will be in the absence of any other evidence, a rash inference to draw that the owners has let out that part of the premises. Shri Sachar sought to argue that in considering the question of eviction it has to be borne in mind that the purpose of the Rent Restriction Act is to protect dwelling house and not to protect a person who is not the resident of dwelling house but is making money by sub-letting it. 21. In our opinion, however, having regard took the quality, nature and degree of the occupation of the transferee and the facts found, it cannot be said that either there was any assignment or sub-letting or parting with possession to such a degree by permitting the hoarding that the tenant had long interest. He was using this premises for his benefit. Unless the tenant has infracted the prohibition of the Act, he is not liable to be evicted. The case rests on the express provision of the Act and there is no scope to explore the latent purpose of the Act. 22. In the premises, the High Courts order of eviction cannot be upheld. As no question of non-payment has been found by the trial court and the learned District Judge and there is no finding of any material alteration, in our opinion, the order for eviction cannot be sustained. The appeal, therefore, must be allowed. | 1[ds]e find a certain amount of confusion as to what was the actual state of affairs. The pleadings of the plaintiff-respondent, the landlord in connection with the allegations of parting with possession are set out in paragraphs 5, 6 and 8 of the plaint and these have been answered by the appellant in paragraphs 5, 6, 8 and 9 of the written statement.9. In this connection, it may be appropriate to refer to the deposition of Gopal Saran, the defendant-appellant before the trial court. He had stated that he had put up his board on the shop for advertisement purpose. The board had been put in cement pillars and by putting up the said board neither the roof nor the wall had been dug. The board it was stated was permanently fixed and the tenant asserted that : "I advertise the business the business of the parties from time to time on payment. I have not parted with the possession of the shop or of the roof or any part thereof. "The tenant further stated that in "1974 I advertised for Bhatia on this board in which I had written that I have Zeator I have strength, a picture tractor was also made there. I used to take Rs. 1500 for three years for advertisement out of which painting of board, writing expenditure was mine. The board of my shop as Sharan Opticals is fixed on the front of the shop." It appears on an analysis of the evidence that the correct position in law, as established before the learned District Judge, was that the tenant used to carry on apart from opticals business, the business of advertising and for that he used to charge in the manner indicated therein. He used to charge certain amount of money. The question is whether by so doing, the tenant-appellant has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord. It is undisputed that whatever has happened has happened without the permission of theOn the facts found, it cannot be said or even argued that there was any assignment by the tenant. "Assignment", it has been stated in Blacks Law Dictionary, Fifth edn., p. 109, "is a transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein". It has further been stated as "The transfer by a party of all its rights to some kind of property, usually intangible property such as rights in a lease, mortgage, agreement of sale or partnership." It has to be examined whether there was sub-letting or otherwise parting with possession in terms of Section 13(1)(e) of theIn this connection, it may be appropriate to refer to the deposition of the tenant, wherein he hadBOARD PAR PRACHAR KE TEEN SALL KE PANDRAH SAU RUPAYE MAIN LETA THA JISMEN PAINTING AUR BOARD AUR LIKHAVAT KA KHARCH MEREThe above, in our opinion, indicates that the board was used for publicity and paintings and other expenses were of the tenant. Therefore, it was tenant who was carrying on the business. The learned trial Judge had noted the evidence on this. The learned trail Judge in his judgment at page 96 of the paper book had observed that the defendant in his written statement had admitted about the fixation of sign board on the shop. But the board had been displayed by not fixing anything on the wall or any angles on the roof. The plaintiff-landlord had not submitted any evidence but the defendant-tenant in his evidence had admitted that he had fixed the board in the walls of the cement which was fixed permanently, and he fixed the board time to time during the course of his business of advertisement. The defendant further admitted that in 1947, he had advertised the board of Bhatia in which he had written that he had a tractor and the picture of tractor was made on the board. These in the learned trial Judges judgment as well all the deposition of the tenant-appellant, in our opinion, conclusively establish that it was the tenant who was carrying on the business of advertisement by advertising the advertisements of different traders. If that is the position, then in this situation, can it be said that there was either any assignment, sub-letting or otherwise parting withIt was contended in that case that the front of the wall was wholly in the control of the licensees. That is not wholly the true view, Justice Farwell observed. The right of the licensees to put up their advertisement hoarding did not prevent the defendants from using the wall so long as they did not interfere with their licensees. Merely giving the licensees a right to use the wall for a particular was not parting with possession within the covenant, in that case it wasIn this, there was no assignment. Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party. In this connection, reference may be made to the decision of this Court in Shalimar Tar Products Ltd. v. H. C. Sharma ((1988) 1 SCC 70 ) where it was held that to constitute a sub-letting, there must be a parting to legal possession, i.e., possession with the right to included and also right to exclude others and whether in a particular case there was sub-letting was substantially a question of fact. In that case, a reference was made at page 77 of the report to the Treatise of Goa on Landlord and Tenant, 6th edn., at page 323, for the proposition that the mere act of letting other persons into possession by the tenant, and permitting them a use the premises for their own purposes, is not, so long as he retains the legal possession himself, a breach of covenant. In paragraph 17 of the report, it was observed that parting of the legal possession means possession with the right to include and also right to exclude others. In the last mentioned case, the observations of the Madras High Court in Gundalapalli Rangamannar Chetty v. Desu Rangiah (AIR 1954 Mad 182 : (1952) 1 MLJ 652 ) were approved by this Court in which the legal position in Jackson v. Simons ((1923) 1 Ch 373 : 128 LT 572 : 39 TLR 147) were relied upon. The Madras High Court had also relied on a judgment of Scrutton L. J. in Chaplin v. Smith ((1926) 1 KB 198 : 95 LJ KB 449 : 134 LT 393) at page 211 of the report where it was saidHe did not assign, nor did he underlet. He was constantly on the premises himself and kept the key of them. He did business of his own as well as business of the company. In my view he allowed the company to use the premises while he himself remained in possession ofposition was also accepted in Vishwa Nath v. Chaman Lal (AIR 1975 Del 117 : 1975 Ren CJ 514) wherein it was observed that parting with possession is understood as parting with legal possession by one in favour of the other by giving him an exclusive possession to the ouster of the grantor. If the grantor had retained legal possession with him it was not a case of parting with possession. In this connection, reference may be made to the observations of this Court in Madras Bangalore Transport Co .(West) v. India Singh ((1986) 3 SCC 62 ) wherein the observations of the Delhi High Court had been approved. The concept of parting with possession private contracts between the landlord and the tenant was also known in India and it means parting with legal possession to the exclusion of the grantor himself. In this connection, the observations of this Court in Dr. Vijay Kumar v. Raghbir Singh Anokh Singh ((1973) 2 SCC 597 ) may be referred to. There the Rend Controller had found that the appellants had partitioned the shop in question in two portions. The two portions were demarcated by a wooden partition wall. In one portion there was the clinic of the first appellant and in the other portion, the other appellant was carrying on the business of sale and purchase of motor cars. The wooden partition wall had divided the single shop into two parts so that there were now two doors, one in the portion in the occupation of the first appellant, and the other portion in occupation of the other appellant. One could not go directly from one portion to the other on account of the wooden partition wall. The first appellant locked his portion. On these findings, the Rent Controller had held that the second and third appellants were in exclusive possession of their portions. Hence he came to the conclusion that the firsts appellant had parted with the possession of his portion to them. The Rent Controller did not accept the plea of the appellants that the business which was being carried on in their portion was the joint business of the appellants. The first appellant was assessed to income tax. He had never shown the income from the motor business in his income-tax returns. The appellants did not produce the account books. The Rent Controller accordingly held that the plea of joint business had not been established. It was argued before this Court that the first appellant being the father of the other two appellants established them in business and permitted them to occupy a half portion of the shop for that purpose. As a father, it was submitted, it was natural for him to establish his sons in life. In short, the argument was that the second and third appellants were occupying the half portion with his permission. This Court held that that was a plausible argument but they were unable to entertain this at a letter stage in the Supreme Court and further held that the new plea was not a pleading of law but was a plea inIn B. M. Lall v. Dunlop Rubber & Co. Ltd. ((1968) 1 SCR 23 : AIR 1968 SC 175 ) a distinction between the lease and licence was emphasised. See the observations at page 27 of the report. There was in the facts and circumstances of the case no grant of interest in land in favour of theIn Rajbir Kaur v. S. Chekesiri and Co. ((1989) 1 SCC 19 : AIR 1988 SC 1845 ) it was emphasised that it was the operative intention which isthe aforesaid contentions and the position in law, the learned District Judge came to the conclusion that by Ex. 6 no portion of the disputed shop was given to the exclusive possession of the advertising agency or the defendant had not divests itself of any part of the roof. Simply by displaying the advertisement board on any portion of the roof, it could not be said that the possession had been delivered to the company to which the board belonged, according to the learned District Judge, He further held that the tenant continued to be in possession thereof. In such circumstances, it cannot be proved on the basis of the record, the learned District Judge came to the conclusion, that the tenant had parted with thedoes the present licence exclude the defendants from any part of the premises ? It no doubt gives the licensees the exclusive right to use the wall for an advertisement hoarding. No one, including the defendants, can use the wall for that purpose. On the other hand the defendants remain to a large extent in possession of theIn Dipak Banerjee v. Smt. Lilabati Chakraborty ((1987) 4 SCC 161 ) it was reiterated that in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly, the right must be in lieu of payment of some compensation or rent. In this case, the tenant or the sub-tenant did not have any exclusive possession or interest in the building or in any part of the building nor was that right in lieu of any payment or any compensation, on the basis of the facts as indicatedFrom the aforesaid, it appears to us that the question whether there is a tenancy or licence or parting with possession in a particular case must depend upon the quality of occupation given to the licensee or the transferee. Mere occupation is not sufficient, in our opinion, to infer either sub-tenancy or parting with possession. In Associated Hotel of India Ltd. Delhi v. S. B. Sardar Ranjit Singh ((1968) 2 SCR 548 : AIR 1968 SC 933 ) it was held on the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is whether the landlord retained control over the apartment. Similarly, it was held by this Court in Krishnawati v. Hans Raj ((1974) 1 SCC 289 : (1974) 2 SCR 524 ) that sub-letting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee. If two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, will be in the absence of any other evidence, a rash inference to draw that the owners has let out that part of the premises. Shri Sachar sought to argue that in considering the question of eviction it has to be borne in mind that the purpose of the Rent Restriction Act is to protect dwelling house and not to protect a person who is not the resident of dwelling house but is making money by sub-lettingIn our opinion, however, having regard took the quality, nature and degree of the occupation of the transferee and the facts found, it cannot be said that either there was any assignment or sub-letting or parting with possession to such a degree by permitting the hoarding that the tenant had long interest. He was using this premises for his benefit. Unless the tenant has infracted the prohibition of the Act, he is not liable to be evicted. The case rests on the express provision of the Act and there is no scope to explore the latent purpose of theIn the premises, the High Courts order of eviction cannot be upheld. As no question of non-payment has been found by the trial court and the learned District Judge and there is no finding of any material alteration, in our opinion, the order for eviction cannot be sustained. The appeal, therefore, must beOn the basis of the aforesaid, it was contended that it was the definite case of the defendant in examination-in-chief, that the Board belonged to him and that the defendant was carrying on his own business and that there was no dispute as to the same by the plaintiff. It may be mentioned that the plaintiff had not subjected himself to cross-examination in spite of the order of the court after the remand, therefore, it would not be safe to rely on the examination-in-chief recorded which was not subjected to cross-examination before the remand was made. It that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established from the facts on record. When the plaintiff appeared for evidence in rebuttal he could have been cross-examined on these points. It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the plaintiff had not chosen to support his plaint case, before the defendant went to the witness box. There was no question of cross-examining the plaintiff travelling beyond the evidence of the plaintiff given in examination-in-chief and thereby given an opportunity to make out a case in cross-examination. It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with possession by putting up the hoarding. In examination-in-chief also he did not make out such a case and on the contrary his case was that it was the defendant-appellant who had put up the hoarding. The plaintiff did not allege that the defendant-appellant was not carrying on also advertising business. It was submitted on behalf of the appellant that having refused to submit to cross-examination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on the business of advertisement by putting up the hoardings of different parties. The Board was made by him, paintings and writings were also done by him and for putting the hoarding the charged from his customers. Therefore, it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else. It was, however, argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was a factor which would indicate that there was parting of possession by him.On the basis of the aforesaid, it was contended that it was the definite case of the defendant in examination-in-chief, that the Board belonged to him and that the defendant was carrying on his own business and that there was no dispute as to the same by the plaintiff. It may be mentioned that the plaintiff had not subjected himself to cross-examination in spite of the order of the court after the remand, therefore, it would not be safe to rely on the examination-in-chief recorded which was not subjected to cross-examination before the remand was made. It that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established from the facts on record. When the plaintiff appeared for evidence in rebuttal he could have been cross-examined on these points. It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the plaintiff had not chosen to support his plaint case, before the defendant went to the witness box. There was no question of cross-examining the plaintiff travelling beyond the evidence of the plaintiff given in examination-in-chief and thereby given an opportunity to make out a case in cross-examination. It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with possession by putting up the hoarding. In examination-in-chief also he did not make out such a case and on the contrary his case was that it was the defendant-appellant who had put up the hoarding. The plaintiff did not allege that the defendant-appellant was not carrying on also advertising business. It was submitted on behalf of the appellant that having refused to submit to cross-examination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on the business of advertisement by putting up the hoardings of different parties. The Board was made by him, paintings and writings were also done by him and for putting the hoarding the charged from his customers. Therefore, it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else. It was, however, argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was a factor which would indicate that there was parting of possession by him.It was, however,submitted on behalf of the appellant that when the shop had been let out to the defendant-appellant for carrying on business it was the right of the defendant-appellant to carry on the business. It was legally permissible to use the said shop room and also use the roof thereof and earn as much as could be done and as such it is not parting with possession. | 1 | 8,989 | 3,708 | ### Instruction:
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Court in Dr. Vijay Kumar v. Raghbir Singh Anokh Singh ((1973) 2 SCC 597 ) may be referred to. There the Rend Controller had found that the appellants had partitioned the shop in question in two portions. The two portions were demarcated by a wooden partition wall. In one portion there was the clinic of the first appellant and in the other portion, the other appellant was carrying on the business of sale and purchase of motor cars. The wooden partition wall had divided the single shop into two parts so that there were now two doors, one in the portion in the occupation of the first appellant, and the other portion in occupation of the other appellant. One could not go directly from one portion to the other on account of the wooden partition wall. The first appellant locked his portion. On these findings, the Rent Controller had held that the second and third appellants were in exclusive possession of their portions. Hence he came to the conclusion that the firsts appellant had parted with the possession of his portion to them. The Rent Controller did not accept the plea of the appellants that the business which was being carried on in their portion was the joint business of the appellants. The first appellant was assessed to income tax. He had never shown the income from the motor business in his income-tax returns. The appellants did not produce the account books. The Rent Controller accordingly held that the plea of joint business had not been established. It was argued before this Court that the first appellant being the father of the other two appellants established them in business and permitted them to occupy a half portion of the shop for that purpose. As a father, it was submitted, it was natural for him to establish his sons in life. In short, the argument was that the second and third appellants were occupying the half portion with his permission. This Court held that that was a plausible argument but they were unable to entertain this at a letter stage in the Supreme Court and further held that the new plea was not a pleading of law but was a plea in fact. 17. In B. M. Lall v. Dunlop Rubber & Co. Ltd. ((1968) 1 SCR 23 : AIR 1968 SC 175 ) a distinction between the lease and licence was emphasised. See the observations at page 27 of the report. There was in the facts and circumstances of the case no grant of interest in land in favour of the advertiser: "18. In Rajbir Kaur v. S. Chekesiri and Co. ((1989) 1 SCC 19 : AIR 1988 SC 1845 ) it was emphasised that it was the operative intention which is important." 19. In Dipak Banerjee v. Smt. Lilabati Chakraborty ((1987) 4 SCC 161 ) it was reiterated that in order to prove tenancy or sub-tenancy two ingredients had to be established, firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly, the right must be in lieu of payment of some compensation or rent. In this case, the tenant or the sub-tenant did not have any exclusive possession or interest in the building or in any part of the building nor was that right in lieu of any payment or any compensation, on the basis of the facts as indicated hereinafter. 20. From the aforesaid, it appears to us that the question whether there is a tenancy or licence or parting with possession in a particular case must depend upon the quality of occupation given to the licensee or the transferee. Mere occupation is not sufficient, in our opinion, to infer either sub-tenancy or parting with possession. In Associated Hotel of India Ltd. Delhi v. S. B. Sardar Ranjit Singh ((1968) 2 SCR 548 : AIR 1968 SC 933 ) it was held on the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is whether the landlord retained control over the apartment. Similarly, it was held by this Court in Krishnawati v. Hans Raj ((1974) 1 SCC 289 : (1974) 2 SCR 524 ) that sub-letting like letting, is a particular type of demise of immovable property and is distinct from permissive user like that of a licensee. If two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, will be in the absence of any other evidence, a rash inference to draw that the owners has let out that part of the premises. Shri Sachar sought to argue that in considering the question of eviction it has to be borne in mind that the purpose of the Rent Restriction Act is to protect dwelling house and not to protect a person who is not the resident of dwelling house but is making money by sub-letting it. 21. In our opinion, however, having regard took the quality, nature and degree of the occupation of the transferee and the facts found, it cannot be said that either there was any assignment or sub-letting or parting with possession to such a degree by permitting the hoarding that the tenant had long interest. He was using this premises for his benefit. Unless the tenant has infracted the prohibition of the Act, he is not liable to be evicted. The case rests on the express provision of the Act and there is no scope to explore the latent purpose of the Act. 22. In the premises, the High Courts order of eviction cannot be upheld. As no question of non-payment has been found by the trial court and the learned District Judge and there is no finding of any material alteration, in our opinion, the order for eviction cannot be sustained. The appeal, therefore, must be allowed.
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there is no scope to explore the latent purpose of theIn the premises, the High Courts order of eviction cannot be upheld. As no question of non-payment has been found by the trial court and the learned District Judge and there is no finding of any material alteration, in our opinion, the order for eviction cannot be sustained. The appeal, therefore, must beOn the basis of the aforesaid, it was contended that it was the definite case of the defendant in examination-in-chief, that the Board belonged to him and that the defendant was carrying on his own business and that there was no dispute as to the same by the plaintiff. It may be mentioned that the plaintiff had not subjected himself to cross-examination in spite of the order of the court after the remand, therefore, it would not be safe to rely on the examination-in-chief recorded which was not subjected to cross-examination before the remand was made. It that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established from the facts on record. When the plaintiff appeared for evidence in rebuttal he could have been cross-examined on these points. It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the plaintiff had not chosen to support his plaint case, before the defendant went to the witness box. There was no question of cross-examining the plaintiff travelling beyond the evidence of the plaintiff given in examination-in-chief and thereby given an opportunity to make out a case in cross-examination. It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with possession by putting up the hoarding. In examination-in-chief also he did not make out such a case and on the contrary his case was that it was the defendant-appellant who had put up the hoarding. The plaintiff did not allege that the defendant-appellant was not carrying on also advertising business. It was submitted on behalf of the appellant that having refused to submit to cross-examination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on the business of advertisement by putting up the hoardings of different parties. The Board was made by him, paintings and writings were also done by him and for putting the hoarding the charged from his customers. Therefore, it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else. It was, however, argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was a factor which would indicate that there was parting of possession by him.On the basis of the aforesaid, it was contended that it was the definite case of the defendant in examination-in-chief, that the Board belonged to him and that the defendant was carrying on his own business and that there was no dispute as to the same by the plaintiff. It may be mentioned that the plaintiff had not subjected himself to cross-examination in spite of the order of the court after the remand, therefore, it would not be safe to rely on the examination-in-chief recorded which was not subjected to cross-examination before the remand was made. It that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint. This position appears established from the facts on record. When the plaintiff appeared for evidence in rebuttal he could have been cross-examined on these points. It was submitted that in rebuttal the plaintiff had stated only with regard to the default in payment of rent but the plaintiff had not chosen to support his plaint case, before the defendant went to the witness box. There was no question of cross-examining the plaintiff travelling beyond the evidence of the plaintiff given in examination-in-chief and thereby given an opportunity to make out a case in cross-examination. It, therefore, appears from the pleadings and the evidence that the respondent did not make out any case of the appellant parting with possession by putting up the hoarding. In examination-in-chief also he did not make out such a case and on the contrary his case was that it was the defendant-appellant who had put up the hoarding. The plaintiff did not allege that the defendant-appellant was not carrying on also advertising business. It was submitted on behalf of the appellant that having refused to submit to cross-examination the plaintiff has made the evidence in examination-in-chief non est. It was the case of the defendant that he was carrying on the business of advertisement by putting up the hoardings of different parties. The Board was made by him, paintings and writings were also done by him and for putting the hoarding the charged from his customers. Therefore, it appears to us that there are no clear findings that anybody was given lease or anybody was given the right to put up the hoarding and there was parting of possession in favour of anyone else. It was, however, argued that even if the appellant had put the advertisement board hoarding he was earning a huge amount by the same and this was a factor which would indicate that there was parting of possession by him.It was, however,submitted on behalf of the appellant that when the shop had been let out to the defendant-appellant for carrying on business it was the right of the defendant-appellant to carry on the business. It was legally permissible to use the said shop room and also use the roof thereof and earn as much as could be done and as such it is not parting with possession.
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State 0F Bombay & Others Vs. The Hospital Mazdoor Sabha & Others | can be regarded as analogous to the earning on of a trade or business. In that case this Court was concerned with the claim for bonus made by the workmen of the Baroda Borought Municipality and it was rejected; comment has been made by learned counsel on some of the grounds accepted by this Court in support of its final decision, but in the present appeal we are not concerned with the claim for bonus and it is not necessry for us to refer to the said comment or to deal with it.22. So far as the decisions of the Industrial Tribunals are concerned it appears that the the Labour Appellate Tribunal has held as early as 1952 that a hospital is an undertaking within the meaning of S. 2(j). In Sri Vishuddhananda Saraswathi Marwari Hospital v. Their Workmen, 1952-2 Lab LJ 327 (LATI-Cal), the Labour Appellate Tribunal considered at length the policy and object of the Act, several judgments cited before it and came to the conclusion that the defintion of industry in S. 2(j) was of wide amplitude and that there was no good reason for cutting down its natural meaning so as to limit its operation to profit-making enterprises only. It has not been suggested before us that this view has ever been doubted or dissented from in any subsequent industrial adjudication.23. In Judicial discusssions about the scope and character of the ceonept of industry as it has devleoped in a modern democratic State the decision of the High Court of Australia in Federated State School Teachers Association of Australia V. The State of Victoria, 41 CLR 569, is generally cited. In that case, according to the majority decision it was held that the educational activities of the State carried on under the appropriate statutes and statutory regulations of each State relating to education did not constitute an industry within the meaning of S. 4 of the Commonwelath Conciliation and Arbitration Act, 1904-1928; that the occupation of teachers so employed was not an industrial occuptation; and that the dispute which existed between the States and the teachers employed by them was, therefore, not an industrial dispute within S. 51 (xxxv) of the Constitution. Isaacs J., however, struck an emphatic note of dissent, and the principles enunciated in this note of dissent have received approval from industrial tribunals in this country, and they have been rightly accepted by the Bombay High Court as affording valuable assistance in deciding the question in the present proceedings. Isaacs J., has uttered a note of caution that in dealing with industrial disputes industrial adjudicators must be conversant with the current knowledge on the subject and they should not ignore the constant currents of life around them for otherwise it would introduce a serious infirmity in their approach. Dealing with the general characteristics of industrial enterprises the learned judge observed that they contribute more or less to the general welfare of the community; and he has reiterated his earlier observations on the point in these words :"Industrial disputes occur when in relation to operations in which capital and labour and contributed in co-operation for the satisfaction of human wants or desires, those engaged in co-operation dispute as to the basis to be observed by the parties engaged, respecting either a share of the product or any other terms or conditions of their co-operation."According to the learned Judge, the question must always be decided by determining the true character of the activity in question. It is these tests which the High Court has applied in deciding the present dispute and we are in general agreement with the decision of the High Court. We ought to make it clear that in the present appal we are not expressing any opinion on the question as to whether running an educational institution would be an industry under the Act; that question does not arise in the present proceedings.24. There are two more decisions to which refernce may be made before we part with this appeal. In Brij Mohan Bagaria v. N. C. Chatterjee, 1958-2 Lab LJ 190 : (AIR 1958 Cal. 460 ), the Calcutta High Court was dealing with a dispute between an attorney of the court and some of his employess who had been dismissed by him and it was held that the said dispute was outside the purview of the Act. Sinha J., who heard the petiion filed by the attorney, observed that"however extended the meaning be given to the word indsutry or to industrial dispute or to undertaking or calling we cannot include within their concept the case of an indivisual who carried on a profession dependent upon his own intellectual skill". The learned Judge has then added that "every case must be decided upon its own facts."It appears that, according to the learned judge, if an attorney or a doctor or a lawyer who follows a liberal profession, the pursuit of which depends upon his own education, intellectual attainments and special equipment, engages employess, that would not mean that the employee is engageing in an industry under S. 2(j); but, with the question of the attorney or doctor or the lawyer we are not directly concerned in the present appeal. We have, however, referred to this decision because, in the course of discussion, the larned judge has expressed his dissent from the view taken by the Bombay High Court in regard to hospitals, and we with to make it clear that, in our opinion, the criticism mae by the learned judge against the inclusion of hospitals within S. 2(j) is not well-founded. Dealing with a similar case of an attorney the Bombay High Court has taken the same view in National Union of Commercial Employees v. M. R. Meher, 1959-2 Lab LJ 38 : (AIR 1960 Bom 22 .)25. We would accordingly hold that the High Court was right in holding that the dispute between the appellant and the respondents was an industrial dispute to which S. 25F of the Act applied. | 0[ds]6. Now, turning to the first point, it may be stated that the facts on which the respondents plea is based are not in dispute. It is conceded that the services of respondents 2 and 3 have been retrenched though it may be for the purpose of making room for other Government servants with a longer record of service who had to be retrenched owing to the closure of the appellants Civil Supplies Department. It is also not disputed that the said respondents had not been paid at the time of retrenchment compensation as prescribed by S. 25Fa plain reading of S. 25F (b) it is clear that the requirement prescribed by it is a condition precedent for the retrenchment of the workman. The section provides that no workman shall be retrenched until the condition in question has been satisfied. It is difficult to accede to the argument that when the section imposes in mandatory terms a condition precedent, non-compliance with the said condition would not render the impugned retrenchmentour opinion, this view is untenable. Having regard to the fact that the words used in S. 25F (b) are mandatory and their effect is plain and unambiguous it seems to us that the Court of Appeal was right in holding that S. 25-I covered cases of recovery of monies other than those specified in S. 25F (b), and it is obvious that there are several other cases in which monies become due from the employers to the employees under Ch. V; it is for the recovery of these monies that S. 25-I had been enacted. Therefore, we see no substance in the argument that the Court of Appeal has misconstrued S. 25F (b). That being so, failure to comply with the said provision renders the impugned orders invalid andis why, we think, in construing the wide words used in S. 2(j) it would be erroneous to attach undue importance to attributes associated with business or trade in the popular mind in days gone by.12. It is clear, however, that though S. 2(j) uses words of every wide denotation, a line would have to be drawn in a fair and jut manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning, all services and all callings would come within the purview of the definition; even service rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep the word "service" is intended to include service howsoever rendered in whatsoever capacity and for whatsoever reason. We must, therefore, consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the whole words used in S. 2(j); and that no doubt is a somewhat difficult problem to decide.It is not disputed that under S. 2(j) an activity can and must be regarded as an industry even though in carrying it out profit motive may be absent. It is also common ground that the absence of investment of any capital would not make a material difference to the applicability of S. 2 (j).It would be possible to exclude some activities from S. 2(j) without any difficulty. Negatively stated the activities of the Government which can be properly described as regal or sovereign activities are outside the scope of S.2(j). These are functions which a constitutional Government can and must undertake for governance and which no private citizen can undertake.This position is not inour opinion, this contention cannot besounds incongruous and self-contradictory to suggest that activities undertaken by the Government in the interests of socio-economic progress of the country as beneficial measures should be exempted from the operation of the Act which in substance is a very important beneficial measurewe are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of widerdefinition clearly indicates that the Legislature intended the application of the Act to activities of the Government which fall within S.is no doubt that if a hospital is run by private citizens for profit it would be an undertaking very much like the trade or business in their conventional sense. We have already stated that the presence of profit motive is not essential for bringing an undertaking within S. 2(j). If that be so, if a private citizen runs a hospital without charging any fees from the patients treated in it, it would nevertheless be an undertaking under S. 2(j). Thus the character of the activity involved in running a hospital brings the institution of the hospital within S.our opinion, the answer to this question must be in the negative.It is the character of the activity which decides the question as to whether the activity in question attracts the provision of S. 2(j), who conducts the activity and whether it is conducted for profit or not do not make a materialis difficult to state these possible attributes definitely or exhaustively; as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such an activity generally involves the co-operation of the employer and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must be casual nor must it be for oneself nor for the pleasure. Thus the manner in which the activity in question is organised or arranged, the condition of the co-operation between employer and the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which S. 2(j) applies.Judged by this test there would be no difficulty in holding that the State is carrying on an undertaking when it runs the group of Hospitals inthis argument is put in a slightly different from in substance it is really based on the idea that profit motive is necessary to make any activity an undertaking analogous to trade orour opinion, in deciding the question as to whether any activity in question is an under taking under S. 2(j) the doctrine of quid pro quo can have no application. Therefore, we are satisfied that the High Court was right in coming to the conclusion that the conduct and running of the group of Hospitals by the appellant amounted to an undertaking under S. 2(j) and the relevant provisions of the Act werewe may add that quite apart from the relevant considerations which we have already discusses it would be difficult to suggest that though the sanitary deprtment of a local body is an undertaking under S. 2(j) a hospital run by a Government isin the present appeal we are not concerned with the claim for bonus and it is not necessry for us to refer to the said comment or to deal withhas not been suggested before us that this view has ever been doubted or dissented from in any subsequent industrialto the learned Judge, the question must always be decided by determining the true character of the activity in question. It is these tests which the High Court has applied in deciding the present dispute and we are in general agreement with the decision of the High Court. We ought to make it clear that in the present appal we are not expressing any opinion on the question as to whether running an educational institution would be an industry under the Act; that question does not arise in the presentwith the question of the attorney or doctor or the lawyer we are not directly concerned in the present appeal. We have, however, referred to this decision because, in the course of discussion, the larned judge has expressed his dissent from the view taken by the Bombay High Court in regard to hospitals, and we with to make it clear that, in our opinion, the criticism mae by the learned judge against the inclusion of hospitals within S. 2(j) is not well-founded.We would accordingly hold that the High Court was right in holding that the dispute between the appellant and the respondents was an industrial dispute to which S. 25F of the Act | 0 | 6,893 | 1,549 | ### Instruction:
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can be regarded as analogous to the earning on of a trade or business. In that case this Court was concerned with the claim for bonus made by the workmen of the Baroda Borought Municipality and it was rejected; comment has been made by learned counsel on some of the grounds accepted by this Court in support of its final decision, but in the present appeal we are not concerned with the claim for bonus and it is not necessry for us to refer to the said comment or to deal with it.22. So far as the decisions of the Industrial Tribunals are concerned it appears that the the Labour Appellate Tribunal has held as early as 1952 that a hospital is an undertaking within the meaning of S. 2(j). In Sri Vishuddhananda Saraswathi Marwari Hospital v. Their Workmen, 1952-2 Lab LJ 327 (LATI-Cal), the Labour Appellate Tribunal considered at length the policy and object of the Act, several judgments cited before it and came to the conclusion that the defintion of industry in S. 2(j) was of wide amplitude and that there was no good reason for cutting down its natural meaning so as to limit its operation to profit-making enterprises only. It has not been suggested before us that this view has ever been doubted or dissented from in any subsequent industrial adjudication.23. In Judicial discusssions about the scope and character of the ceonept of industry as it has devleoped in a modern democratic State the decision of the High Court of Australia in Federated State School Teachers Association of Australia V. The State of Victoria, 41 CLR 569, is generally cited. In that case, according to the majority decision it was held that the educational activities of the State carried on under the appropriate statutes and statutory regulations of each State relating to education did not constitute an industry within the meaning of S. 4 of the Commonwelath Conciliation and Arbitration Act, 1904-1928; that the occupation of teachers so employed was not an industrial occuptation; and that the dispute which existed between the States and the teachers employed by them was, therefore, not an industrial dispute within S. 51 (xxxv) of the Constitution. Isaacs J., however, struck an emphatic note of dissent, and the principles enunciated in this note of dissent have received approval from industrial tribunals in this country, and they have been rightly accepted by the Bombay High Court as affording valuable assistance in deciding the question in the present proceedings. Isaacs J., has uttered a note of caution that in dealing with industrial disputes industrial adjudicators must be conversant with the current knowledge on the subject and they should not ignore the constant currents of life around them for otherwise it would introduce a serious infirmity in their approach. Dealing with the general characteristics of industrial enterprises the learned judge observed that they contribute more or less to the general welfare of the community; and he has reiterated his earlier observations on the point in these words :"Industrial disputes occur when in relation to operations in which capital and labour and contributed in co-operation for the satisfaction of human wants or desires, those engaged in co-operation dispute as to the basis to be observed by the parties engaged, respecting either a share of the product or any other terms or conditions of their co-operation."According to the learned Judge, the question must always be decided by determining the true character of the activity in question. It is these tests which the High Court has applied in deciding the present dispute and we are in general agreement with the decision of the High Court. We ought to make it clear that in the present appal we are not expressing any opinion on the question as to whether running an educational institution would be an industry under the Act; that question does not arise in the present proceedings.24. There are two more decisions to which refernce may be made before we part with this appeal. In Brij Mohan Bagaria v. N. C. Chatterjee, 1958-2 Lab LJ 190 : (AIR 1958 Cal. 460 ), the Calcutta High Court was dealing with a dispute between an attorney of the court and some of his employess who had been dismissed by him and it was held that the said dispute was outside the purview of the Act. Sinha J., who heard the petiion filed by the attorney, observed that"however extended the meaning be given to the word indsutry or to industrial dispute or to undertaking or calling we cannot include within their concept the case of an indivisual who carried on a profession dependent upon his own intellectual skill". The learned Judge has then added that "every case must be decided upon its own facts."It appears that, according to the learned judge, if an attorney or a doctor or a lawyer who follows a liberal profession, the pursuit of which depends upon his own education, intellectual attainments and special equipment, engages employess, that would not mean that the employee is engageing in an industry under S. 2(j); but, with the question of the attorney or doctor or the lawyer we are not directly concerned in the present appeal. We have, however, referred to this decision because, in the course of discussion, the larned judge has expressed his dissent from the view taken by the Bombay High Court in regard to hospitals, and we with to make it clear that, in our opinion, the criticism mae by the learned judge against the inclusion of hospitals within S. 2(j) is not well-founded. Dealing with a similar case of an attorney the Bombay High Court has taken the same view in National Union of Commercial Employees v. M. R. Meher, 1959-2 Lab LJ 38 : (AIR 1960 Bom 22 .)25. We would accordingly hold that the High Court was right in holding that the dispute between the appellant and the respondents was an industrial dispute to which S. 25F of the Act applied.
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suggested that in its wide sweep the word "service" is intended to include service howsoever rendered in whatsoever capacity and for whatsoever reason. We must, therefore, consider where the line should be drawn and what limitations can and should be reasonably implied in interpreting the whole words used in S. 2(j); and that no doubt is a somewhat difficult problem to decide.It is not disputed that under S. 2(j) an activity can and must be regarded as an industry even though in carrying it out profit motive may be absent. It is also common ground that the absence of investment of any capital would not make a material difference to the applicability of S. 2 (j).It would be possible to exclude some activities from S. 2(j) without any difficulty. Negatively stated the activities of the Government which can be properly described as regal or sovereign activities are outside the scope of S.2(j). These are functions which a constitutional Government can and must undertake for governance and which no private citizen can undertake.This position is not inour opinion, this contention cannot besounds incongruous and self-contradictory to suggest that activities undertaken by the Government in the interests of socio-economic progress of the country as beneficial measures should be exempted from the operation of the Act which in substance is a very important beneficial measurewe are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of widerdefinition clearly indicates that the Legislature intended the application of the Act to activities of the Government which fall within S.is no doubt that if a hospital is run by private citizens for profit it would be an undertaking very much like the trade or business in their conventional sense. We have already stated that the presence of profit motive is not essential for bringing an undertaking within S. 2(j). If that be so, if a private citizen runs a hospital without charging any fees from the patients treated in it, it would nevertheless be an undertaking under S. 2(j). Thus the character of the activity involved in running a hospital brings the institution of the hospital within S.our opinion, the answer to this question must be in the negative.It is the character of the activity which decides the question as to whether the activity in question attracts the provision of S. 2(j), who conducts the activity and whether it is conducted for profit or not do not make a materialis difficult to state these possible attributes definitely or exhaustively; as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such community with the help of employees is an undertaking. Such an activity generally involves the co-operation of the employer and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must be casual nor must it be for oneself nor for the pleasure. Thus the manner in which the activity in question is organised or arranged, the condition of the co-operation between employer and the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which S. 2(j) applies.Judged by this test there would be no difficulty in holding that the State is carrying on an undertaking when it runs the group of Hospitals inthis argument is put in a slightly different from in substance it is really based on the idea that profit motive is necessary to make any activity an undertaking analogous to trade orour opinion, in deciding the question as to whether any activity in question is an under taking under S. 2(j) the doctrine of quid pro quo can have no application. Therefore, we are satisfied that the High Court was right in coming to the conclusion that the conduct and running of the group of Hospitals by the appellant amounted to an undertaking under S. 2(j) and the relevant provisions of the Act werewe may add that quite apart from the relevant considerations which we have already discusses it would be difficult to suggest that though the sanitary deprtment of a local body is an undertaking under S. 2(j) a hospital run by a Government isin the present appeal we are not concerned with the claim for bonus and it is not necessry for us to refer to the said comment or to deal withhas not been suggested before us that this view has ever been doubted or dissented from in any subsequent industrialto the learned Judge, the question must always be decided by determining the true character of the activity in question. It is these tests which the High Court has applied in deciding the present dispute and we are in general agreement with the decision of the High Court. We ought to make it clear that in the present appal we are not expressing any opinion on the question as to whether running an educational institution would be an industry under the Act; that question does not arise in the presentwith the question of the attorney or doctor or the lawyer we are not directly concerned in the present appeal. We have, however, referred to this decision because, in the course of discussion, the larned judge has expressed his dissent from the view taken by the Bombay High Court in regard to hospitals, and we with to make it clear that, in our opinion, the criticism mae by the learned judge against the inclusion of hospitals within S. 2(j) is not well-founded.We would accordingly hold that the High Court was right in holding that the dispute between the appellant and the respondents was an industrial dispute to which S. 25F of the Act
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K.K. Modi S/O Late Gujarmal Modi Vs. Securities Appellate Tribunal & Others | not dispute that the acquirers, together with persons acting in concert, claim to have acquired 23.40% of the equity capital of the target company. It is also not disputed that Modipon Limited hold only 4.53% of the share-holding of MRL. Four acquirers.named in the offer document claim to hold 12.53% shares in the target company, and together with Modipon Limited and those acting in concert with them, they claim to hold 23.40% of the equity capital of the target company. If, from this, the 4.53% share-holding of Modipon Limited is excluded, the balance is still 18.87% which clearly attracts Regulation 11 of the SEBI Regulations, 1997. The fallacy in the calculation made by Mr. Dwarkadas is that it excludes the share-holding of other persons, apart from Modipon Limited, who, they claim, are acting in concert with them. 25. The submission urged by Mr. Dwarkadas that in the past as well, Modipon Limited has always acted in concert with the co-promoters of MRL, is really of no assistance to him. What is relevant is not whether the promoters have acted in concert with each other in managing the target company, but whether they are acting in concert with the purpose of substantial acquisition of shares or voting rights or gaining control over the target company. The fact, therefore, that the target company, MRL, has been managed in the past by the promoters acting in co-operation and concert with each other is hardly relevant for determining the question whether the promoters are acting in concert in the matter of substantial acquisition of shares or voting rights in the target company. The mere fact, therefore, that the acquirers, while making the public offer, assumed and acted on the basis that Modipon Limited was acting in concert with them, will not make Modipon Limited a person acting in concert with them. 26. We are, therefore, of the considered opinion that a co-promoter of the target company, merely by reason of his being a co-promoter, cannot be said to be a person acting in concert with the acquirer who also happens to be one of the promoters of the target company, unless the evidence on record clearly establishes that the promoter shares the common objective or purpose of substantial acquisition of shares or voting rights for gaining control over the target company, with the acquirer. The question whether a promoter is acting in concert with the acquirer is a question of fact, and the answer, therefore, must depend on the facts of each case. 27. In view of our finding that Modipon Limited, in the facts and circumstances of the case, cannot be said to be a person acting in concert with the acquirers, the question as to whether Modipon Limited belongs to Group A or Group B is not of any significance. We have already noticed in this judgment that the Board of Directors of Modipon Limited have consciously taken a decision to participate in the public offer made by the acquirers to the shareholders of the company. If Modipon Limited is neither an acquirer nor a person acting or deemed to be acting in concert with the acquirer, it must fall in the category of other shareholders of the target company, and its shareholding must be treated as "public shareholding" within the meaning of Regulation 2(1)(j) of the Regulations of 1997. 28. Mr. Dwarkadas then contended that the appeal preferred before the Appellate Tribunal was not authorised by Resolution of the Board of Directors of Modipon Limited or by its Chairman. The Appellate Tribunal has relied upon the Resolution of the Board of Directors of Modipon Limited dated 24th March, 1998. Mr. Dawarkadas contended that the Resolution only authorised the persons named therein to act on behalf of Modipon Fibres Co., which was the Fibres Division of Modipon Limited, and not on behalf of Modipon Limited itself. Mr. Chagla, on the other hand, submitted that it was not necessary to go into that question, because, admittedly, Modipon Limited moved this High Court by filing a writ petition challenging the communication of SEBI to Modipon Limited dated 29th May, 2001, informing Modipon Limited that it was not eligible to participate in the public offer made by the acquirers. It is not their case that Modipon Limited had not authorised the filing of such a petition before the High Court. That writ petition, being Writ Petition (Lodging) No. 1536 of 2001, was disposed of by this Court, in view of the statement made by Counsel appearing on behalf of SEBI that SEBI would hear the parties, and then pass a fresh order. Thereafter, the Chairman of SEBI passed the impugned order dated 16th July, 2001 which was also challenged by Modipon Limited in the aforesaid writ petition. This Court, however, did not interfere with the decision, in view of the fact that an appeal lay before the appellate Tribunal against the order of the Chairman of SEBI. This Court, therefore, permitted Modipon Limited to prefer an appeal before the Appellate Authority, and, in fact, directed the Appellate Authority to decide the appeal on or before 31st July, 2001. Mr. Chagla, therefore, submitted that pursuant to an order of this Court in a duly constituted proceeding, the appeal was preferred before the appellate Tribunal. The appellants, therefore, cannot contend that the filing of the appeal was not authorised by the Board of Directors of the company. We have earlier noticed that the filing of the writ petition challenging the decision of SEBI to exclude Modipon Limited from participation in the public offer has not been challenged on the ground that it was not authorised by Modipon Limited. The filing of the appeal before the appellate authority was, therefore, pursuant to the directions of this Court in a duly constituted proceedings before this Court. We find considerable force in the submission of Mr. Chagla, and it must be held that the appeal filed before the Appellate Tribunal was maintainable, and did not suffer from any legal infirmity. | 0[ds]The Regulations deal inter alia with substantial acquisition of shares in companies by an acquirer. They do not, in any manner, inhibit the right of the owner of shares to sell his shares to a willing purchaser. In fact, the law leans in favour of free transferability of shares. Mr. Chagla, therefore, rightly emphasized that the purpose of the regulations is to regulate acquisition, and not divestment of shares. Regulations 10, 11 and 12, therefore do not secure any advantage to an acquirer, but, in fact, act to his detriment as the acquirer is inhibited from acquiring unlimited number of shares without making a public offer.Regulation 2(1)(h) defines "promoter" to mean the person or persons who are in control of the company, or person or persons named in any offer document as promoters. It is, therefore, apparent that in respect of a company, a promoter may be in control of the company or it may be that other persons are in control of the company. Such other persons are in control of the company are deemed to be promoters under Regulation 2(1)(h). Even a person or persons named in any offer document as promoters is or are deemed to be promoters.Regulation 8 merely obliges a promoter to disclose the number and percentage of shares or voting rights held by him and by persons acting in concert with him. The mere fact that a promoter as required to disclose his shareholding in the company does not necessarily make him an acquirer. So far as the acquirer is concerned, there can be no dispute as to who are the acquirers. In the public announcement required to be made, the acquirers have to disclose their identity. But, since acquirer includes within its definition persons acting in concert with him, the question arises as to who are the persons acting in concert withthe appellate Tribunal has rightly pointed out, there is no hard and fast rule that a promoter must always be deemed to be an acquirer or a person acting in concert with the acquirer. On the facts, it may be held that a promoter shares the common objective or purpose of substantial acquisition of shares with the acquirer. It may well be that he may not share the said common objective or purpose. If he does, he shall be deemed to be a person acting in concert with the acquirer, but if he does not, he cannot be deemed to be acquirer merely because he happens to be promoter. Regulation 2(1)(e)(2) also makes this clear. The persons named therein are deemed to be persons acting in concert with other persons in the same category, unless the contrary is established. It, therefore, follows that even though there is a presumption that the persons described therein may be deemed to be persons acting in concert with the acquirer, the presumption is rebuttable, and, therefore, in each case, the facts have to be examined to reach a conclusion as to whether a person is or is not acting in concert with the acquirer for the purpose of substantial acquisition of shares or voting rights or gaining control over the targetmere fact that one of the promoters of the company wishes to do so, is no reason to hold that the other promoters also necessarily share his objective or purpose. The other promoters may, in fact, be opposed to the acquirer acquiring further shares in the target company, and if they fail to prevent the acquirer from doing so, they may be inclined to dispose of the shares held by them. In such a situation, it cannot be said that the other promoters share the common objective or purpose of the acquirer.It is true that the public offer is made under the Regulations to enable the other shareholders of the company to take an informed decision as to whether they will continue as shareholders or whether they will offer their shares to the acquirers who have made the public offer to purchase them at a stipulated price. It may well be urged that by a clever device, by fraud or collusion, the benefit to which the other shareholders of the company are entitled may be sought to be conferred on awho is really acting in concert with the acquirer though pretending to be otherwise. However, in the instant case, there is no allegation that Modipon Limited is acting in collusion with the acquirers. On the contrary, there is a bitter contest between them, inasmuch as Modipon Limited wishes to sell off its shares, while the acquirers contend that Modipon Limited cannot participate in the public offer made by them to the shareholders of thefacts of this case clearly establish that though Modipon Limited is aof MRL, it does not share the common objective or purpose of the acquirers, inasmuch as it is not interested in acquiring further shares, but, on the contrary, is interested in selling off itsin MRL with a view to meet its financial obligations. On facts, therefore, it must be held that Modipon Limited is not acting in concert with the acquirers. In law, the mere fact that Modipon Limited is a promoter, does not confer on it the status of an acquirer, or a person acting in concert with theour view, the submission has no force. Whether Regulation 11(1) applies to the acquirers or not, is a question which has to be determined on facts. The mere fact that the acquirers have treated a promoter as a person acting in concert with them, even though such promoter does not share their common objective and purpose, will not make such a promoter a person acting in concert with the acquirers. The acquirers have no right to arbitrarily treat any person as a person acting in concert with them. That is a question which must be decided on the fact of each case.We are, therefore, of the considered opinion that aof the target company, merely by reason of his being acannot be said to be a person acting in concert with the acquirer who also happens to be one of the promoters of the target company, unless the evidence on record clearly establishes that the promoter shares the common objective or purpose of substantial acquisition of shares or voting rights for gaining control over the target company, with the acquirer. The question whether a promoter is acting in concert with the acquirer is a question of fact, and the answer, therefore, must depend on the facts of each case.Mr. Dwarkadas then contended that the appeal preferred before the Appellate Tribunal was not authorised by Resolution of the Board of Directors of Modipon Limited or by its Chairman. The Appellate Tribunal has relied upon the Resolution of the Board of Directors of Modipon Limited dated 24th March, 1998. Mr. Dawarkadas contended that the Resolution only authorised the persons named therein to act on behalf of Modipon Fibres Co., which was the Fibres Division of Modipon Limited, and not on behalf of Modipon Limited itself. Mr. Chagla, on the other hand, submitted that it was not necessary to go into that question, because, admittedly, Modipon Limited moved this High Court by filing a writ petition challenging the communication of SEBI to Modipon Limited dated 29th May, 2001, informing Modipon Limited that it was not eligible to participate in the public offer made by the acquirers. It is not their case that Modipon Limited had not authorised the filing of such a petition before the High Court. That writ petition, being Writ Petition (Lodging) No. 1536 of 2001, was disposed of by this Court, in view of the statement made by Counsel appearing on behalf of SEBI that SEBI would hear the parties, and then pass a fresh order. Thereafter, the Chairman of SEBI passed the impugned order dated 16th July, 2001 which was also challenged by Modipon Limited in the aforesaid writ petition. This Court, however, did not interfere with the decision, in view of the fact that an appeal lay before the appellate Tribunal against the order of the Chairman of SEBI. This Court, therefore, permitted Modipon Limited to prefer an appeal before the Appellate Authority, and, in fact, directed the Appellate Authority to decide the appeal on or before 31st July, 2001. Mr. Chagla, therefore, submitted that pursuant to an order of this Court in a duly constituted proceeding, the appeal was preferred before the appellate Tribunal. The appellants, therefore, cannot contend that the filing of the appeal was not authorised by the Board of Directors of the company. We have earlier noticed that the filing of the writ petition challenging the decision of SEBI to exclude Modipon Limited from participation in the public offer has not been challenged on the ground that it was not authorised by Modipon Limited. The filing of the appeal before the appellate authority was, therefore, pursuant to the directions of this Court in a duly constituted proceedings before this Court. We find considerable force in the submission of Mr. Chagla, and it must be held that the appeal filed before the Appellate Tribunal was maintainable, and did not suffer from any legal infirmity. | 0 | 9,382 | 1,707 | ### Instruction:
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not dispute that the acquirers, together with persons acting in concert, claim to have acquired 23.40% of the equity capital of the target company. It is also not disputed that Modipon Limited hold only 4.53% of the share-holding of MRL. Four acquirers.named in the offer document claim to hold 12.53% shares in the target company, and together with Modipon Limited and those acting in concert with them, they claim to hold 23.40% of the equity capital of the target company. If, from this, the 4.53% share-holding of Modipon Limited is excluded, the balance is still 18.87% which clearly attracts Regulation 11 of the SEBI Regulations, 1997. The fallacy in the calculation made by Mr. Dwarkadas is that it excludes the share-holding of other persons, apart from Modipon Limited, who, they claim, are acting in concert with them. 25. The submission urged by Mr. Dwarkadas that in the past as well, Modipon Limited has always acted in concert with the co-promoters of MRL, is really of no assistance to him. What is relevant is not whether the promoters have acted in concert with each other in managing the target company, but whether they are acting in concert with the purpose of substantial acquisition of shares or voting rights or gaining control over the target company. The fact, therefore, that the target company, MRL, has been managed in the past by the promoters acting in co-operation and concert with each other is hardly relevant for determining the question whether the promoters are acting in concert in the matter of substantial acquisition of shares or voting rights in the target company. The mere fact, therefore, that the acquirers, while making the public offer, assumed and acted on the basis that Modipon Limited was acting in concert with them, will not make Modipon Limited a person acting in concert with them. 26. We are, therefore, of the considered opinion that a co-promoter of the target company, merely by reason of his being a co-promoter, cannot be said to be a person acting in concert with the acquirer who also happens to be one of the promoters of the target company, unless the evidence on record clearly establishes that the promoter shares the common objective or purpose of substantial acquisition of shares or voting rights for gaining control over the target company, with the acquirer. The question whether a promoter is acting in concert with the acquirer is a question of fact, and the answer, therefore, must depend on the facts of each case. 27. In view of our finding that Modipon Limited, in the facts and circumstances of the case, cannot be said to be a person acting in concert with the acquirers, the question as to whether Modipon Limited belongs to Group A or Group B is not of any significance. We have already noticed in this judgment that the Board of Directors of Modipon Limited have consciously taken a decision to participate in the public offer made by the acquirers to the shareholders of the company. If Modipon Limited is neither an acquirer nor a person acting or deemed to be acting in concert with the acquirer, it must fall in the category of other shareholders of the target company, and its shareholding must be treated as "public shareholding" within the meaning of Regulation 2(1)(j) of the Regulations of 1997. 28. Mr. Dwarkadas then contended that the appeal preferred before the Appellate Tribunal was not authorised by Resolution of the Board of Directors of Modipon Limited or by its Chairman. The Appellate Tribunal has relied upon the Resolution of the Board of Directors of Modipon Limited dated 24th March, 1998. Mr. Dawarkadas contended that the Resolution only authorised the persons named therein to act on behalf of Modipon Fibres Co., which was the Fibres Division of Modipon Limited, and not on behalf of Modipon Limited itself. Mr. Chagla, on the other hand, submitted that it was not necessary to go into that question, because, admittedly, Modipon Limited moved this High Court by filing a writ petition challenging the communication of SEBI to Modipon Limited dated 29th May, 2001, informing Modipon Limited that it was not eligible to participate in the public offer made by the acquirers. It is not their case that Modipon Limited had not authorised the filing of such a petition before the High Court. That writ petition, being Writ Petition (Lodging) No. 1536 of 2001, was disposed of by this Court, in view of the statement made by Counsel appearing on behalf of SEBI that SEBI would hear the parties, and then pass a fresh order. Thereafter, the Chairman of SEBI passed the impugned order dated 16th July, 2001 which was also challenged by Modipon Limited in the aforesaid writ petition. This Court, however, did not interfere with the decision, in view of the fact that an appeal lay before the appellate Tribunal against the order of the Chairman of SEBI. This Court, therefore, permitted Modipon Limited to prefer an appeal before the Appellate Authority, and, in fact, directed the Appellate Authority to decide the appeal on or before 31st July, 2001. Mr. Chagla, therefore, submitted that pursuant to an order of this Court in a duly constituted proceeding, the appeal was preferred before the appellate Tribunal. The appellants, therefore, cannot contend that the filing of the appeal was not authorised by the Board of Directors of the company. We have earlier noticed that the filing of the writ petition challenging the decision of SEBI to exclude Modipon Limited from participation in the public offer has not been challenged on the ground that it was not authorised by Modipon Limited. The filing of the appeal before the appellate authority was, therefore, pursuant to the directions of this Court in a duly constituted proceedings before this Court. We find considerable force in the submission of Mr. Chagla, and it must be held that the appeal filed before the Appellate Tribunal was maintainable, and did not suffer from any legal infirmity.
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fact that one of the promoters of the company wishes to do so, is no reason to hold that the other promoters also necessarily share his objective or purpose. The other promoters may, in fact, be opposed to the acquirer acquiring further shares in the target company, and if they fail to prevent the acquirer from doing so, they may be inclined to dispose of the shares held by them. In such a situation, it cannot be said that the other promoters share the common objective or purpose of the acquirer.It is true that the public offer is made under the Regulations to enable the other shareholders of the company to take an informed decision as to whether they will continue as shareholders or whether they will offer their shares to the acquirers who have made the public offer to purchase them at a stipulated price. It may well be urged that by a clever device, by fraud or collusion, the benefit to which the other shareholders of the company are entitled may be sought to be conferred on awho is really acting in concert with the acquirer though pretending to be otherwise. However, in the instant case, there is no allegation that Modipon Limited is acting in collusion with the acquirers. On the contrary, there is a bitter contest between them, inasmuch as Modipon Limited wishes to sell off its shares, while the acquirers contend that Modipon Limited cannot participate in the public offer made by them to the shareholders of thefacts of this case clearly establish that though Modipon Limited is aof MRL, it does not share the common objective or purpose of the acquirers, inasmuch as it is not interested in acquiring further shares, but, on the contrary, is interested in selling off itsin MRL with a view to meet its financial obligations. On facts, therefore, it must be held that Modipon Limited is not acting in concert with the acquirers. In law, the mere fact that Modipon Limited is a promoter, does not confer on it the status of an acquirer, or a person acting in concert with theour view, the submission has no force. Whether Regulation 11(1) applies to the acquirers or not, is a question which has to be determined on facts. The mere fact that the acquirers have treated a promoter as a person acting in concert with them, even though such promoter does not share their common objective and purpose, will not make such a promoter a person acting in concert with the acquirers. The acquirers have no right to arbitrarily treat any person as a person acting in concert with them. That is a question which must be decided on the fact of each case.We are, therefore, of the considered opinion that aof the target company, merely by reason of his being acannot be said to be a person acting in concert with the acquirer who also happens to be one of the promoters of the target company, unless the evidence on record clearly establishes that the promoter shares the common objective or purpose of substantial acquisition of shares or voting rights for gaining control over the target company, with the acquirer. The question whether a promoter is acting in concert with the acquirer is a question of fact, and the answer, therefore, must depend on the facts of each case.Mr. Dwarkadas then contended that the appeal preferred before the Appellate Tribunal was not authorised by Resolution of the Board of Directors of Modipon Limited or by its Chairman. The Appellate Tribunal has relied upon the Resolution of the Board of Directors of Modipon Limited dated 24th March, 1998. Mr. Dawarkadas contended that the Resolution only authorised the persons named therein to act on behalf of Modipon Fibres Co., which was the Fibres Division of Modipon Limited, and not on behalf of Modipon Limited itself. Mr. Chagla, on the other hand, submitted that it was not necessary to go into that question, because, admittedly, Modipon Limited moved this High Court by filing a writ petition challenging the communication of SEBI to Modipon Limited dated 29th May, 2001, informing Modipon Limited that it was not eligible to participate in the public offer made by the acquirers. It is not their case that Modipon Limited had not authorised the filing of such a petition before the High Court. That writ petition, being Writ Petition (Lodging) No. 1536 of 2001, was disposed of by this Court, in view of the statement made by Counsel appearing on behalf of SEBI that SEBI would hear the parties, and then pass a fresh order. Thereafter, the Chairman of SEBI passed the impugned order dated 16th July, 2001 which was also challenged by Modipon Limited in the aforesaid writ petition. This Court, however, did not interfere with the decision, in view of the fact that an appeal lay before the appellate Tribunal against the order of the Chairman of SEBI. This Court, therefore, permitted Modipon Limited to prefer an appeal before the Appellate Authority, and, in fact, directed the Appellate Authority to decide the appeal on or before 31st July, 2001. Mr. Chagla, therefore, submitted that pursuant to an order of this Court in a duly constituted proceeding, the appeal was preferred before the appellate Tribunal. The appellants, therefore, cannot contend that the filing of the appeal was not authorised by the Board of Directors of the company. We have earlier noticed that the filing of the writ petition challenging the decision of SEBI to exclude Modipon Limited from participation in the public offer has not been challenged on the ground that it was not authorised by Modipon Limited. The filing of the appeal before the appellate authority was, therefore, pursuant to the directions of this Court in a duly constituted proceedings before this Court. We find considerable force in the submission of Mr. Chagla, and it must be held that the appeal filed before the Appellate Tribunal was maintainable, and did not suffer from any legal infirmity.
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State Bank of Travancore Vs. M/s. Kingston Computers (I) P. Ltd | authority letter dated 2.1.2003 to do the following things: (i) to sign, verify and file a suit for recovery on behalf of the company against the State Bank of Travancore, R.K. Puram Branch, New Delhi,(ii) to sign, verify and file any document, application to lead evidence, make statement or compromise the matter before the Honble Court,(iii) to appoint any advocate or pleader or counsel and to sign vakalatnama,(iv)to represent the company or appear on its behalf before the concerned Court, any public authority or Tribunal and to represent for the purpose of representing the company, and(v) to do all other acts, deeds and things whatever is necessary for pursuing the case of recovery against State Bank of Travancore which are not specifically mentioned. 9. In the written statement filed on behalf of the appellant, an objection was taken to the maintainability of the suit on the ground that the plaint has not been signed, verified and filed by a competent and authorised representative on behalf of the company and that there is neither any valid Board resolution nor any valid authorisation on behalf of the company nor a copy of the resolution has been filed along with the suit. It was also pleaded that the person who has instituted the suit on behalf of the company is not shown to be a power of attorney holder nor a copy of such power of attorney has been filed with the plaint and the authorisation letter purported to have been given by the so-called Chief Executive Officer is not a valid authorisation. In the rejoinder filed on behalf of the company, it was reiterated that Shri Ashok K.Shukla, who has signed, verified and filed the plaint was authorised by Shri Raj K.Shukla vide authority letter dated 2.1.2003. 10. In his evidence, which was filed in the form of an affidavit, Shri Ashok K.Shukla claimed that he is one of the Directors of the company and has been authorised by Shri Raj K.Shukla vide authority letter dated 2.1.2003 to file the suit. In cross-examination, Shri Ashok K.Shukla claimed that he was the only Director in the company and that the Board of Directors of the company had passed resolution authorising Shri Raj K.Shukla to take decisions independently. He also claimed that he had been given power of attorney on behalf of the company, which was filed on record. He however admitted that no resolution was passed by the Board of Directors authorising him to sign, verify and file the plaint. 11. The trial Court analyzed the pleadings and evaluated the evidence produced by the parties, referred to authority letter dated 2.1.2003 issued by Shri Raj K.Shukla in favour of Shri Ashok K.Shukla and observed: "A perusal of the aforesaid authority letter shows that Shri Raj K.Shukla in his capacity as CEO of the plaintiff company had authorised Shri A.K. Shukla to sign, verify and file the present suit. Apart from this authority letter, the plaintiff company has not filed on record any board resolution authorising Sh. A.K. Shukla to sign, verify and institute the present suit. The plaintiff has also not filed on record its memorandum/articles to show that Shri Raj Kumar Shukla had been vested with the powers or had been given a general power of attorney on behalf of the company to sign, verify and institute the suit on behalf of the company. The present suit, therefore, has been filed merely on the strength of the authority letter Ex.PW1/A............" 12. The trial Court then referred to the judgment of the Delhi High Court in M/s. Nibro Limited v. National Insurance Company Limited AIR 1991 Delhi 25, Shubh Shanti Services Limited v. Manjula S.Agarwalla and others (2005) 5 SCC 30 , Delhi High Court (original side) Rules, 1967 and proceeded to observe: "..............As already stated, it has not been averred in the plaint nor sought to be proved that any resolution had been passed by the Board of Directors of the plaintiff company authorising Shri A.K. Shukla to sign, verify and institute the suit. It has also not been averred that the memorandum/articles of the plaintiff company give any right to Shri A.K. Shukla to sign, verify and institute a suit on behalf of the plaintiff company. It, therefore, follows that the plaint has been instituted by Shri A.K. Shukla only on the authority of Sh. Raj K.Shukla, CEO of the plaintiff company. Such an authority is not recognized under law and, therefore, I held that the plaint has not been instituted by an authorised person. Issue No.1 is accordingly, decided against the plaintiff and in favour of the defendants." 13. The Division Bench of the High Court did take cognizance of the fact that the company had not summoned any witness from the office of the Registrar of Company to prove that Shri Ashok K.Shukla was a Director of the company and that the minute book of the company had not been produced to prove the appointment of Shri Ashok K.Shukla as a Director, but reversed the finding of the trial Court on issue No.1 on the basis of the authority letter issued by Shri Raj K.Shukla and resolutions dated 14.2.2001 and 19.4.2001, by which the Board of Directors of the company had authorised some persons to operate the bank account. 14. In our view, the judgment under challenge is liable to be set aside because the respondent had not produced any evidence to prove that Shri Ashok K.Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the appellant and authorised Shri Ashok K.Shukla to do so. The letter of authority issued by Shri Raj K.Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K.Shukla to authorise another person to file suit on behalf of the company. 15. | 1[ds]The Division Bench of the High Court did take cognizance of the fact that the company had not summoned any witness from the office of the Registrar of Company to prove that Shri Ashok K.Shukla was a Director of the company and that the minute book of the company had not been produced to prove the appointment of Shri Ashok K.Shukla as a Director, but reversed the finding of the trial Court on issue No.1 on the basis of the authority letter issued by Shri Raj K.Shukla and resolutions dated 14.2.2001 and 19.4.2001, by which the Board of Directors of the company had authorised some persons to operate the bankour view, the judgment under challenge is liable to be set aside because the respondent had not produced any evidence to prove that Shri Ashok K.Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the appellant and authorised Shri Ashok K.Shukla to do so. The letter of authority issued by Shri Raj K.Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K.Shukla to authorise another person to file suit on behalf of the company. | 1 | 1,857 | 237 | ### 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:
authority letter dated 2.1.2003 to do the following things: (i) to sign, verify and file a suit for recovery on behalf of the company against the State Bank of Travancore, R.K. Puram Branch, New Delhi,(ii) to sign, verify and file any document, application to lead evidence, make statement or compromise the matter before the Honble Court,(iii) to appoint any advocate or pleader or counsel and to sign vakalatnama,(iv)to represent the company or appear on its behalf before the concerned Court, any public authority or Tribunal and to represent for the purpose of representing the company, and(v) to do all other acts, deeds and things whatever is necessary for pursuing the case of recovery against State Bank of Travancore which are not specifically mentioned. 9. In the written statement filed on behalf of the appellant, an objection was taken to the maintainability of the suit on the ground that the plaint has not been signed, verified and filed by a competent and authorised representative on behalf of the company and that there is neither any valid Board resolution nor any valid authorisation on behalf of the company nor a copy of the resolution has been filed along with the suit. It was also pleaded that the person who has instituted the suit on behalf of the company is not shown to be a power of attorney holder nor a copy of such power of attorney has been filed with the plaint and the authorisation letter purported to have been given by the so-called Chief Executive Officer is not a valid authorisation. In the rejoinder filed on behalf of the company, it was reiterated that Shri Ashok K.Shukla, who has signed, verified and filed the plaint was authorised by Shri Raj K.Shukla vide authority letter dated 2.1.2003. 10. In his evidence, which was filed in the form of an affidavit, Shri Ashok K.Shukla claimed that he is one of the Directors of the company and has been authorised by Shri Raj K.Shukla vide authority letter dated 2.1.2003 to file the suit. In cross-examination, Shri Ashok K.Shukla claimed that he was the only Director in the company and that the Board of Directors of the company had passed resolution authorising Shri Raj K.Shukla to take decisions independently. He also claimed that he had been given power of attorney on behalf of the company, which was filed on record. He however admitted that no resolution was passed by the Board of Directors authorising him to sign, verify and file the plaint. 11. The trial Court analyzed the pleadings and evaluated the evidence produced by the parties, referred to authority letter dated 2.1.2003 issued by Shri Raj K.Shukla in favour of Shri Ashok K.Shukla and observed: "A perusal of the aforesaid authority letter shows that Shri Raj K.Shukla in his capacity as CEO of the plaintiff company had authorised Shri A.K. Shukla to sign, verify and file the present suit. Apart from this authority letter, the plaintiff company has not filed on record any board resolution authorising Sh. A.K. Shukla to sign, verify and institute the present suit. The plaintiff has also not filed on record its memorandum/articles to show that Shri Raj Kumar Shukla had been vested with the powers or had been given a general power of attorney on behalf of the company to sign, verify and institute the suit on behalf of the company. The present suit, therefore, has been filed merely on the strength of the authority letter Ex.PW1/A............" 12. The trial Court then referred to the judgment of the Delhi High Court in M/s. Nibro Limited v. National Insurance Company Limited AIR 1991 Delhi 25, Shubh Shanti Services Limited v. Manjula S.Agarwalla and others (2005) 5 SCC 30 , Delhi High Court (original side) Rules, 1967 and proceeded to observe: "..............As already stated, it has not been averred in the plaint nor sought to be proved that any resolution had been passed by the Board of Directors of the plaintiff company authorising Shri A.K. Shukla to sign, verify and institute the suit. It has also not been averred that the memorandum/articles of the plaintiff company give any right to Shri A.K. Shukla to sign, verify and institute a suit on behalf of the plaintiff company. It, therefore, follows that the plaint has been instituted by Shri A.K. Shukla only on the authority of Sh. Raj K.Shukla, CEO of the plaintiff company. Such an authority is not recognized under law and, therefore, I held that the plaint has not been instituted by an authorised person. Issue No.1 is accordingly, decided against the plaintiff and in favour of the defendants." 13. The Division Bench of the High Court did take cognizance of the fact that the company had not summoned any witness from the office of the Registrar of Company to prove that Shri Ashok K.Shukla was a Director of the company and that the minute book of the company had not been produced to prove the appointment of Shri Ashok K.Shukla as a Director, but reversed the finding of the trial Court on issue No.1 on the basis of the authority letter issued by Shri Raj K.Shukla and resolutions dated 14.2.2001 and 19.4.2001, by which the Board of Directors of the company had authorised some persons to operate the bank account. 14. In our view, the judgment under challenge is liable to be set aside because the respondent had not produced any evidence to prove that Shri Ashok K.Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the appellant and authorised Shri Ashok K.Shukla to do so. The letter of authority issued by Shri Raj K.Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K.Shukla to authorise another person to file suit on behalf of the company. 15.
### Response:
1
### Explanation:
The Division Bench of the High Court did take cognizance of the fact that the company had not summoned any witness from the office of the Registrar of Company to prove that Shri Ashok K.Shukla was a Director of the company and that the minute book of the company had not been produced to prove the appointment of Shri Ashok K.Shukla as a Director, but reversed the finding of the trial Court on issue No.1 on the basis of the authority letter issued by Shri Raj K.Shukla and resolutions dated 14.2.2001 and 19.4.2001, by which the Board of Directors of the company had authorised some persons to operate the bankour view, the judgment under challenge is liable to be set aside because the respondent had not produced any evidence to prove that Shri Ashok K.Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the appellant and authorised Shri Ashok K.Shukla to do so. The letter of authority issued by Shri Raj K.Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K.Shukla to authorise another person to file suit on behalf of the company.
|
Asrumati Debi Vs. Kumar Rupendra Deb Raikot And Others | of the Letters Patent. We have indicated what the essential features of a judgment are according to both the Calcutta and the Madras High Courts and all that we need say is that, in our opinion, an order under clause 13 of the Letters Patent does not satisfy the tests of a judgment as formulated by either of these High Courts.8. The question that requires determination in an application under clause 13 of the Letters Patent is, whether a particular suit should be removed from any court which is subject to the superintendence of the High Court and tried and determined by the latter as a court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the court. In the present case, a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a judgment. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originally filed.Mr. Chatterjee in the course of his arguments placed considerable reliance upon the pronoucement of the Calcutta High Court in Hadjee Ismail v. Hadjee Mahomed [13 Beng. L.R. 91.], where it was held by Couch C.J. and Pontifex J. that an order refusing to rescind leave to sue granted under clause 12 of the Letters Patent was a judgment under clause 15 and could be challenged by way of appeal. This decision was followed by the Bombay High Court in Vaghoji v. Camaji [I.L.R. 29 Bom. 249.]; and it is argued by Mr. Chatterjee that there is no difference in principle between an order of that description and an order transferring a suit under clause 13 of the Letters Patent. The contention of Mr. Chatterjee undoubtedly receives support from the judgment of the Madras High Court in Krishna Reddy v. Thanikachala [I.L.R. 47 Mad. 136 .], where precisely the same line of reasoning was adopted. In our opinion, this reasoning is not sound and there is an essential difference between an order rescinding or refusing to rescind leave to sue granted under clause 12 of the Letters Patent and one removing a suit from subordinate court to the High Court under clause 13 of the Letters Patent, and this distinction would be apparent from the observations of Sir Arnold White C.J. in the Madras Full Bench case [Vide Tuljaram v. Alagappa, 35 Mad.1 (F.B).] mentioned above, to which sufficient attention does not appear to have been paid by the learned Judges of the same court who decided the later case. Referring to the decision of the Bombay High Court in Vaghoji v. Camaji [I.L.R. 29 Bom. 249.], White C.J. observed as follows :"As regards the Bombay authorities I may refer to Vaghoji v. Camaji [I.L.R. 29 Bom. 249.], where it was held that an appeal lay from an order dismissing a Judges summons to show cause why leave granted under clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file. Here the adjudication asked for, it made, would have disposed of the suit. So also would an order made under an application to revoke a submission to arbitration. I think such an order is appealable."9. Leave granted under clause 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded, the suit automatically comes to an end and there is no doubt that such an order would be a judgment. If, on the order hand, an order is made dismissing the Judges summons to show cause why the leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed out [Vide Vaghoji v. Camaji, I.L.R. 29 Bom. 249.], that a decision on a vital point adverse to the defendant, which goes to the very root of the suit, becomes final and decisive against him so far as the court making the order is concerned. This brings the order within the category of a judgment as laid down in the Calcutta cases. We need not express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state that there is difference between an order refusing to rescind leave granted under clause 12 of the Letters Patent and one under clause 13 directing the removal of a suit from one court to another, and there is no good reason to hold that principle applicable to one applies to the other also.10. | 0[ds]It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the court. In the present case, a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a judgment. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originallywas held by the Full Bench of the Rangoon High Court that the term judgment in the Letters Patent means and is a decree in a suit by which the rights of the parties in the suit are determined. In other words, a judgment is not what is defined in section 2(9) of Civil Procedure Code as being the statement given by the judge of the grounds of a decree or order, but is a judgment in its final and definitive sense embodying a decree. A final judgment is an adjudication which conclusively determines the rights of the parties with regard to all matters in issue in the suit, whereas a preliminary or interlocutory judgment is a decree by which the right to the relief claimed in the suit is decided but under which further proceedings are necessary before a suit in its entirety can be disposed of. Save and except final and preliminary judgments thus defined, all other decisions are orders and they do not come within the description of judgments under the relevant clause of the Letters Patent. No order is appealable unless an appeal is expressly provided against it by the Civil Procedure Code or some other Act of the Legislature. In this view an order for transferring a suit from a subordinate court to the High Court could not possibly be regarded as a judgment, and consequently no appeal would lie against such an order. This definition of judgment has been accepted in several cases by the Nagpur Highview of this wide divergence of judicial opinion, it may be necessary for this court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word judgment as it occurs in clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts. We are, however, relieved from embarking on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us, be regarded as a judgment within the meaning of clause 15 of the Lettersis true that according to the learned Chief Justice an adjudication, in order that it might rank as a judgment, need not decide the case on its merits, but it must be the final pronouncement of the court making it, the effect of which is to dispose of or terminate the suit oris true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the court. In the present case, a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a judgment. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originallyneed not express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state that there is difference between an order refusing to rescind leave granted under clause 12 of the Letters Patent and one under clause 13 directing the removal of a suit from one court to another, and there is no good reason to hold that principle applicable to one applies to the other also. | 0 | 3,755 | 1,177 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
of the Letters Patent. We have indicated what the essential features of a judgment are according to both the Calcutta and the Madras High Courts and all that we need say is that, in our opinion, an order under clause 13 of the Letters Patent does not satisfy the tests of a judgment as formulated by either of these High Courts.8. The question that requires determination in an application under clause 13 of the Letters Patent is, whether a particular suit should be removed from any court which is subject to the superintendence of the High Court and tried and determined by the latter as a court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the court. In the present case, a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a judgment. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originally filed.Mr. Chatterjee in the course of his arguments placed considerable reliance upon the pronoucement of the Calcutta High Court in Hadjee Ismail v. Hadjee Mahomed [13 Beng. L.R. 91.], where it was held by Couch C.J. and Pontifex J. that an order refusing to rescind leave to sue granted under clause 12 of the Letters Patent was a judgment under clause 15 and could be challenged by way of appeal. This decision was followed by the Bombay High Court in Vaghoji v. Camaji [I.L.R. 29 Bom. 249.]; and it is argued by Mr. Chatterjee that there is no difference in principle between an order of that description and an order transferring a suit under clause 13 of the Letters Patent. The contention of Mr. Chatterjee undoubtedly receives support from the judgment of the Madras High Court in Krishna Reddy v. Thanikachala [I.L.R. 47 Mad. 136 .], where precisely the same line of reasoning was adopted. In our opinion, this reasoning is not sound and there is an essential difference between an order rescinding or refusing to rescind leave to sue granted under clause 12 of the Letters Patent and one removing a suit from subordinate court to the High Court under clause 13 of the Letters Patent, and this distinction would be apparent from the observations of Sir Arnold White C.J. in the Madras Full Bench case [Vide Tuljaram v. Alagappa, 35 Mad.1 (F.B).] mentioned above, to which sufficient attention does not appear to have been paid by the learned Judges of the same court who decided the later case. Referring to the decision of the Bombay High Court in Vaghoji v. Camaji [I.L.R. 29 Bom. 249.], White C.J. observed as follows :"As regards the Bombay authorities I may refer to Vaghoji v. Camaji [I.L.R. 29 Bom. 249.], where it was held that an appeal lay from an order dismissing a Judges summons to show cause why leave granted under clause 12 of the Letters Patent should not be rescinded and the plaint taken off the file. Here the adjudication asked for, it made, would have disposed of the suit. So also would an order made under an application to revoke a submission to arbitration. I think such an order is appealable."9. Leave granted under clause 12 of the Letters Patent constitutes the very foundation of the suit which is instituted on its basis. If such leave is rescinded, the suit automatically comes to an end and there is no doubt that such an order would be a judgment. If, on the order hand, an order is made dismissing the Judges summons to show cause why the leave should not be rescinded, the result is, as Sir Lawrence Jenkins pointed out [Vide Vaghoji v. Camaji, I.L.R. 29 Bom. 249.], that a decision on a vital point adverse to the defendant, which goes to the very root of the suit, becomes final and decisive against him so far as the court making the order is concerned. This brings the order within the category of a judgment as laid down in the Calcutta cases. We need not express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state that there is difference between an order refusing to rescind leave granted under clause 12 of the Letters Patent and one under clause 13 directing the removal of a suit from one court to another, and there is no good reason to hold that principle applicable to one applies to the other also.10.
### Response:
0
### Explanation:
be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originallywas held by the Full Bench of the Rangoon High Court that the term judgment in the Letters Patent means and is a decree in a suit by which the rights of the parties in the suit are determined. In other words, a judgment is not what is defined in section 2(9) of Civil Procedure Code as being the statement given by the judge of the grounds of a decree or order, but is a judgment in its final and definitive sense embodying a decree. A final judgment is an adjudication which conclusively determines the rights of the parties with regard to all matters in issue in the suit, whereas a preliminary or interlocutory judgment is a decree by which the right to the relief claimed in the suit is decided but under which further proceedings are necessary before a suit in its entirety can be disposed of. Save and except final and preliminary judgments thus defined, all other decisions are orders and they do not come within the description of judgments under the relevant clause of the Letters Patent. No order is appealable unless an appeal is expressly provided against it by the Civil Procedure Code or some other Act of the Legislature. In this view an order for transferring a suit from a subordinate court to the High Court could not possibly be regarded as a judgment, and consequently no appeal would lie against such an order. This definition of judgment has been accepted in several cases by the Nagpur Highview of this wide divergence of judicial opinion, it may be necessary for this court at some time or other to examine carefully the principles upon which the different views mentioned above purport to be based and attempt to determine with as much definiteness as possible the true meaning and scope of the word judgment as it occurs in clause 15 of the Letters Patent of the Calcutta High Court and in the corresponding clauses of the Letters Patent of the other High Courts. We are, however, relieved from embarking on such enquiry in the present case as we are satisfied that in none of the views referred to above could an order of the character which we have before us, be regarded as a judgment within the meaning of clause 15 of the Lettersis true that according to the learned Chief Justice an adjudication, in order that it might rank as a judgment, need not decide the case on its merits, but it must be the final pronouncement of the court making it, the effect of which is to dispose of or terminate the suit oris true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the court. In the present case, a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a judgment. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originallyneed not express any final opinion as to the propriety or otherwise of this view. It is enough for our purpose to state that there is difference between an order refusing to rescind leave granted under clause 12 of the Letters Patent and one under clause 13 directing the removal of a suit from one court to another, and there is no good reason to hold that principle applicable to one applies to the other also.
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Mahant Sankarshan Ramanuja Das Goswami Etc., Etc Vs. The State Of Orissa And Another | Art. 14, Art. 19 or Art. 31, provided that it had been reserved for the consideration of the President and had received his assent. By the definition clause, (Art. 31-A (2) (a) ), the expression "estate" was to have the same meaning in any local area, which it or its equivalent had in the existing law relating to land tenures in force in that area but was to include among others any inam.11. The contention of the appellants is really twofold. The first argument is that the benefit of Art. 31A might have been available to the original Act as it was a law for the compulsory acquisition of property for public purposes but not to the amending Act, which was not such a law but only amended a previous law by enlarging the definition of "estate". The second argument is that the word "estate" as defined in S. 2 (g) before its amendment did not apply to pre-settlement minor inams of lands as it applied only to an "inam estate", and an "inam estate" had the meaning which the definition of "estate" had in the Madras Estates Land Act, viz., only whole "inam villages" This, it is urged, follows from the provisions of S. 2 (q) of the Estates Abolition Act quoted earner.12. The first argument is clearly untenable. It assumes that the benefit of Art. 31A is only available to those laws which by themselves provide for compulsory acquisition of property for public purposes and not to laws amending such laws, the assent of the President notwithstanding. This means that the whole of the law, original and amending, must be passed again, and be reserved for the consideration of the President, and must be freshly assented to by him. This is against the legislative practice in this country. It is to be presumed that the President gave his assent to the amending Act in its relation to the Act it sought to amend, and this is more so, when by the amending law the provisions of the earlier law relating to compulsory acquisition of property for public purposes were sought to be extended to new kinds of properties. In assenting to such law, the President assented to new categories of properties being brought within the operation of the existing law, and he, in effect, assented to a law for the compulsory acquisition of public purposes of these new categories of property. The assent of the President to the amending Act thus brought in the protection of Art. 31A as a necessary consequence. The amending Act must be considered in relation to the old law which it sought to extend and the President assented to such an extension or in other words to a law for the compulsory acquisition of property for public purposes.13. The argument that this was not an acquisition of an inam estate comprising a whole village and thus outside the Abolition Act itself has no substance No doubt these minor inams were not of whole villages but of lands and the grant included both the warams and there were thus no intermediaries. But they were inams nevertheless, and the Constitution defined an estate as including any inam, and the amending Act merely followed that definition. The extended definition in the constitution and a similar extended definition in the Act thus exclude resort to the general definition clause in S. 2 (q) of the Abolition Act and the definition of "estate" in the Madras Estates Land Act. The definition of "estate" introduced by the amending Act is sufficiently wide to cover such minor inams and S. 2 (q) only applies, if a word or expression used in the Abolition Act is not defined therein. It the minor inams are already within the definition of the word "estate" there is no need to go to S. 2 (q) or to any local law defining the word. There can be no doubt that if the new definition of "estate" applies to minor inams, then they are affected by the Abolition Act. This, indeed, was conceded.14. Learned counsel for the appellants also urged, though somewhat faintly, that the ejusdem generis rule should be applied to the definition of "estate" in Art. 31A (2) (a) as also to the corresponding new definition in the Abolition Act. This argument proceeds upon an assumption for which there is no foundation. The ejusdem generis rule is applicable where a wide or general term has to be cut down with reference to the genus of the particular terms which precede the general words. This rule has hardly any application where certain specific categories are included in the definition. The ejusdem generis rule may be applicable to the general words "other similar grant" which would take their colour from the particular categories, "jagir, inam, or muafi", which precede them, but the word "inam" is not subject to the same rule. Once it is held that inams of any kind were included, it makes little difference if the inams were of lands and not of whole villages. So also the fact that the holders of such inams cannot be described as intermediaries, or that they comprised both the melwaram and the Kudiwaram rights. Such a distinction would have significance, if the law abolished only intermediaries and not inams which it did. Section of the Abolition Act says :"3 (1) The State Government may from time to time by notification, declare that the estate specified in the notification has passed to and become vested in the State free from all encumbrances."If the definition of the word estate" was wide enough to include a minor inam and a notification was issued, the consequences of S. 3 of the Abolition Act must follow. Such a law is not capable of being called in question on the ground that it abridges any fundamental right conferred by Arts 14 19 and 31, if it has been assented to by the President. The notification was thus valid, if the law was valid. | 0[ds]10. The combined effect of these provisions of the Constitution was that there could be no compulsory acquisition of property for public purposes; unless the law provided for payment of compensation, but the law could not be called in question on this ground if it had been reserved for the consideration of the President and had been assented to by him. The assent of the President was a condition precedent to the effectiveness of the law. By the amendment of the Constitution and the addition of Art. 31A, no such law was to be deemed to be void on the ground that it was inconsistent with or took away or abridged any of the rights conferred by Art. 14, Art. 19 or Art. 31, provided that it had been reserved for the consideration of the President and had received his assent. By the definition clause, (Art. 31-A (2) (a) ), the expression "estate" was to have the same meaning in any local area, which it or its equivalent had in the existing law relating to land tenures in force in that area but was to include among others anyis to be presumed that the President gave his assent to the amending Act in its relation to the Act it sought to amend, and this is more so, when by the amending law the provisions of the earlier law relating to compulsory acquisition of property for public purposes were sought to be extended to new kinds of properties. In assenting to such law, the President assented to new categories of properties being brought within the operation of the existing law, and he, in effect, assented to a law for the compulsory acquisition of public purposes of these new categories of property. The assent of the President to the amending Act thus brought in the protection of Art. 31A as a necessary consequence. The amending Act must be considered in relation to the old law which it sought to extend and the President assented to such an extension or in other words to a law for the compulsory acquisition of property for publicdefinition of "estate" introduced by the amending Act is sufficiently wide to cover such minor inams and S. 2 (q) only applies, if a word or expression used in the Abolition Act is not defined therein. It the minor inams are already within the definition of the word "estate" there is no need to go to S. 2 (q) or to any local law defining the word. There can be no doubt that if the new definition of "estate" applies to minor inams, then they are affected by the Abolition Act. This, indeed, wasejusdem generis rule is applicable where a wide or general term has to be cut down with reference to the genus of the particular terms which precede the general words. This rule has hardly any application where certain specific categories are included in the definition. The ejusdem generis rule may be applicable to the general words "other similar grant" which would take their colour from the particular categories, "jagir, inam, or muafi", which precede them, but the word "inam" is not subject to the same rule. Once it is held that inams of any kind were included, it makes little difference if the inams were of lands and not of whole villages. So also the fact that the holders of such inams cannot be described as intermediaries, or that they comprised both the melwaram and the Kudiwaramthe definition of the word estate" was wide enough to include a minor inam and a notification was issued, the consequences of S. 3 of the Abolition Act must follow. Such a law is not capable of being called in question on the ground that it abridges any fundamental right conferred by Arts 14 19 and 31, if it has been assented to by the President. The notification was thus valid, if the law was valid. | 0 | 2,759 | 735 | ### 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:
Art. 14, Art. 19 or Art. 31, provided that it had been reserved for the consideration of the President and had received his assent. By the definition clause, (Art. 31-A (2) (a) ), the expression "estate" was to have the same meaning in any local area, which it or its equivalent had in the existing law relating to land tenures in force in that area but was to include among others any inam.11. The contention of the appellants is really twofold. The first argument is that the benefit of Art. 31A might have been available to the original Act as it was a law for the compulsory acquisition of property for public purposes but not to the amending Act, which was not such a law but only amended a previous law by enlarging the definition of "estate". The second argument is that the word "estate" as defined in S. 2 (g) before its amendment did not apply to pre-settlement minor inams of lands as it applied only to an "inam estate", and an "inam estate" had the meaning which the definition of "estate" had in the Madras Estates Land Act, viz., only whole "inam villages" This, it is urged, follows from the provisions of S. 2 (q) of the Estates Abolition Act quoted earner.12. The first argument is clearly untenable. It assumes that the benefit of Art. 31A is only available to those laws which by themselves provide for compulsory acquisition of property for public purposes and not to laws amending such laws, the assent of the President notwithstanding. This means that the whole of the law, original and amending, must be passed again, and be reserved for the consideration of the President, and must be freshly assented to by him. This is against the legislative practice in this country. It is to be presumed that the President gave his assent to the amending Act in its relation to the Act it sought to amend, and this is more so, when by the amending law the provisions of the earlier law relating to compulsory acquisition of property for public purposes were sought to be extended to new kinds of properties. In assenting to such law, the President assented to new categories of properties being brought within the operation of the existing law, and he, in effect, assented to a law for the compulsory acquisition of public purposes of these new categories of property. The assent of the President to the amending Act thus brought in the protection of Art. 31A as a necessary consequence. The amending Act must be considered in relation to the old law which it sought to extend and the President assented to such an extension or in other words to a law for the compulsory acquisition of property for public purposes.13. The argument that this was not an acquisition of an inam estate comprising a whole village and thus outside the Abolition Act itself has no substance No doubt these minor inams were not of whole villages but of lands and the grant included both the warams and there were thus no intermediaries. But they were inams nevertheless, and the Constitution defined an estate as including any inam, and the amending Act merely followed that definition. The extended definition in the constitution and a similar extended definition in the Act thus exclude resort to the general definition clause in S. 2 (q) of the Abolition Act and the definition of "estate" in the Madras Estates Land Act. The definition of "estate" introduced by the amending Act is sufficiently wide to cover such minor inams and S. 2 (q) only applies, if a word or expression used in the Abolition Act is not defined therein. It the minor inams are already within the definition of the word "estate" there is no need to go to S. 2 (q) or to any local law defining the word. There can be no doubt that if the new definition of "estate" applies to minor inams, then they are affected by the Abolition Act. This, indeed, was conceded.14. Learned counsel for the appellants also urged, though somewhat faintly, that the ejusdem generis rule should be applied to the definition of "estate" in Art. 31A (2) (a) as also to the corresponding new definition in the Abolition Act. This argument proceeds upon an assumption for which there is no foundation. The ejusdem generis rule is applicable where a wide or general term has to be cut down with reference to the genus of the particular terms which precede the general words. This rule has hardly any application where certain specific categories are included in the definition. The ejusdem generis rule may be applicable to the general words "other similar grant" which would take their colour from the particular categories, "jagir, inam, or muafi", which precede them, but the word "inam" is not subject to the same rule. Once it is held that inams of any kind were included, it makes little difference if the inams were of lands and not of whole villages. So also the fact that the holders of such inams cannot be described as intermediaries, or that they comprised both the melwaram and the Kudiwaram rights. Such a distinction would have significance, if the law abolished only intermediaries and not inams which it did. Section of the Abolition Act says :"3 (1) The State Government may from time to time by notification, declare that the estate specified in the notification has passed to and become vested in the State free from all encumbrances."If the definition of the word estate" was wide enough to include a minor inam and a notification was issued, the consequences of S. 3 of the Abolition Act must follow. Such a law is not capable of being called in question on the ground that it abridges any fundamental right conferred by Arts 14 19 and 31, if it has been assented to by the President. The notification was thus valid, if the law was valid.
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10. The combined effect of these provisions of the Constitution was that there could be no compulsory acquisition of property for public purposes; unless the law provided for payment of compensation, but the law could not be called in question on this ground if it had been reserved for the consideration of the President and had been assented to by him. The assent of the President was a condition precedent to the effectiveness of the law. By the amendment of the Constitution and the addition of Art. 31A, no such law was to be deemed to be void on the ground that it was inconsistent with or took away or abridged any of the rights conferred by Art. 14, Art. 19 or Art. 31, provided that it had been reserved for the consideration of the President and had received his assent. By the definition clause, (Art. 31-A (2) (a) ), the expression "estate" was to have the same meaning in any local area, which it or its equivalent had in the existing law relating to land tenures in force in that area but was to include among others anyis to be presumed that the President gave his assent to the amending Act in its relation to the Act it sought to amend, and this is more so, when by the amending law the provisions of the earlier law relating to compulsory acquisition of property for public purposes were sought to be extended to new kinds of properties. In assenting to such law, the President assented to new categories of properties being brought within the operation of the existing law, and he, in effect, assented to a law for the compulsory acquisition of public purposes of these new categories of property. The assent of the President to the amending Act thus brought in the protection of Art. 31A as a necessary consequence. The amending Act must be considered in relation to the old law which it sought to extend and the President assented to such an extension or in other words to a law for the compulsory acquisition of property for publicdefinition of "estate" introduced by the amending Act is sufficiently wide to cover such minor inams and S. 2 (q) only applies, if a word or expression used in the Abolition Act is not defined therein. It the minor inams are already within the definition of the word "estate" there is no need to go to S. 2 (q) or to any local law defining the word. There can be no doubt that if the new definition of "estate" applies to minor inams, then they are affected by the Abolition Act. This, indeed, wasejusdem generis rule is applicable where a wide or general term has to be cut down with reference to the genus of the particular terms which precede the general words. This rule has hardly any application where certain specific categories are included in the definition. The ejusdem generis rule may be applicable to the general words "other similar grant" which would take their colour from the particular categories, "jagir, inam, or muafi", which precede them, but the word "inam" is not subject to the same rule. Once it is held that inams of any kind were included, it makes little difference if the inams were of lands and not of whole villages. So also the fact that the holders of such inams cannot be described as intermediaries, or that they comprised both the melwaram and the Kudiwaramthe definition of the word estate" was wide enough to include a minor inam and a notification was issued, the consequences of S. 3 of the Abolition Act must follow. Such a law is not capable of being called in question on the ground that it abridges any fundamental right conferred by Arts 14 19 and 31, if it has been assented to by the President. The notification was thus valid, if the law was valid.
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Bhaskar Shrachi Alloys Ltd. and Ors Vs. Damodar Valley Corporation and Ors | by the learned Appellate Tribunal in this regard. Having clarified the manner in which the fourth proviso to Section 14 of the 2003 Act has to be understood, we do not find the reasoning adopted by the learned Appellate Tribunal on the issues relating to depreciation and sinking fund to be fundamentally flawed in any manner so as to give rise to a substantial question of law requiring our intervention/interference Under Section 125 of the 2003 Act. 51. Insofar as the debt-equity ratio is concerned, we find that except for the projects which have been completed prior to 1992 in which case the ratio has been worked out at par with other public-sector organisation at 50:50, the ratio of 70:30 has been adopted following the prescription under Regulation 20 of the Tariff Regulations in the absence of any specific rate under the Act of 1948. 52. So far as the pension and gratuity fund is concerned, the only issue arising is whether the fund worked out on Actuary basis at Rs. 1534.49 crores should be apportioned between the Corporation and the consumers as held by the CERC in the ratio of 40:60 or the entire fund should be allowed to be recovered by way of tariff from the consumers as held by the learned Appellate Tribunal. The reasoning of the learned Appellate Tribunal in coming to the aforesaid conclusion is as follows: D. 3 As a general rule, once the Commission, after prudence check, has agreed with the need for funding the Pension and Gratuity Contribution funds, DVC should have been allowed to recover entire amount from the consumers through the tariff. Asking DVC to contribute out of its own resources would tantamount to denying it the return on equity as assured in terms of Tariff Regulations. However, if we look at it from the point of view of the consumers, the consumers, particularly the industrial and commercial ones, have now no option to adjust their sale price to take into consideration the need for meeting the accumulated liability. It is, therefore, an accepted fact that due to postponing of the creation of such fund, the consumers were enjoying lesser tariff than the legitimate tariff otherwise applicable to them. 53. A careful consideration of the reasoning adopted by the learned Appellate Tribunal would not disclose any such error so as to warrant interference of this Court. No error or fallacy, ex facie, is disclosed in the reasoning adopted so as to justify interference Under Section 125 of the 2003 Act. 54. Insofar as the consumers (Appellants in Civil Appeal Nos. 971-973 of 2008) are concerned, an additional issue has been struck, as noticed earlier. This is with regard to the number of employees engaged in the power sector by the Corporation for whom alone proportionate recovery by way of tariff so far as the pension and gratuity is concerned, would be justifiable. Apart from the fact that the issue was not raised in any of the forums below and had been so raised before this Court for the first time and that too in the course of the arguments advanced, the materials on record do not justify a conclusion to be reached by us which will support the core basis of the contention made, namely, that the Corporation had not laid before the CERC any materials to show the extent of the work-force deployed in the power sector of the Corporation. In fact, in the counter arguments advanced on behalf of the Corporation this contention has been refuted and it is asserted that such materials were, indeed, laid before the CERC, a fact which we find to be correct. 55. Insofar as the issue of allowance of cost relating to other activities of the Corporation to be recovered through tariff on electricity is concerned, we have taken note of the objection(s) raised in this regard which in sum and substance is that Sections 32 and 33 of the Act of 1948 are in direct conflict with Sections 41 and 51 of the 2003 Act and, therefore, recovery of cost incurred in "other works" undertaken by the Corporation through power tariff is wholly untenable. Apart from reiterating the basis on which we have thought it proper to affirm the findings of the learned Appellate Tribunal on the purport and scope of the fourth proviso to Section 14 of the 2003 Act and the continued operation of the provisions of the Act of 1948 which are not inconsistent with the provisions of the 2003 Act, we have also taken note of the specific provisions contained in Sections 41 and 51 of the 2003 Act which, inter alia, require maintenance of separate accounts of the other business undertaken by transmission/distribution licensees so as to ensure that the returns from the transmission/distribution business of electricity do not subsidize any other such business. Not only Sections 41 and 51 of the 2003 Act contemplate prior approval of the Appropriate Commission before a licensee can engage in any other business other than that of a licensee under the 2003 Act, what is contemplated by the aforesaid provisions of the 2003 Act is some return or earning of revenue from such business. In the instant case, the "other activities" of the Corporation are not optional as contemplated Under Sections 41/51 of the 2003 Act but are mandatorily cast by the statute i.e. Act of 1948 which, being in the nature of socially beneficial measures, per se, do not entail earning of any revenue so as to require maintenance of separate accounts. The allowance of recovery of cost incurred in connection with "other activities" of the Corporation from the common fund generated by tariff chargeable from the consumers/customers of electricity as contemplated by the provisions of the Act of 1948, therefore, do not collide or is, in any manner, inconsistent with the provisions of the 2003 Act. We will, therefore, have no occasion to interfere with the findings recorded by the learned Appellate Tribunal on the above score. | 0[ds]27. We have considered the reasons which had weighed with the CERC as well as the learned Appellate Tribunal in granting the aforesaid transitory period. The present dispute, regardless of the way it is resolved, would have relevance to the quantum of the tariff, depending on whether the determination is made on the basis of the provisions of Part IV of the Act of 1948 or the provisions of the Tariff Regulations, as may be. So far as the grant of the transitory period is concerned, the same, we have noticed, has been so granted having due regard to the statutory functions/social responsibilities that the Corporation is mandated to undertake in terms of the Act of 1948. The tariff fixed is also lower than the tariff that has been fixed by the Jharkhand and West Bengal Electricity Regulatory Commission for the general/domestic classes of consumers. While it is correct that the classes of consumers served by the Corporation are HT-Industrial consumers like Steel, Coal, Railways, etc. beside bulk supply to main beneficiaries of State Electricity Boards of West Bengal and Jharkhand, the said fact, itself, is another peculiar feature which distinguishes the Corporation from other licenses. If in a situation where the Corporation in addition to generation, transmission and distribution of electricity is statutorily required to undertake certain social security/beneficial measures like flood control, control of soil erosion, afforestation, navigation, promotion of public health, etc. we do not see how the grant of transitory period can be faulted with. We, therefore, decline to interfere with the aforesaid part of the order of the learned Appellate Tribunal28. The learned Appellate Tribunal has also taken the view that having regard to the provisions of Section 79 of the 2003 Act it is the CERC which would be the "Appropriate Commission" for determination of tariff inasmuch as the Damodar Valley Corporation is a Corporation owned and controlled by the Central Government. The detailed inputs to arrive at the aforesaid conclusion have been duly considered by us. On such consideration, we are of the view that the above conclusion recorded by the learned Appellate Tribunal is neither unreasonable nor irrelevant so as to warrant our interference, particularly, in exercise of the limited jurisdiction Under Section 125 of the 2003 ActAs can be observed, the primary objective of the Tennessee Valley Authority Act is to prevent floods across the Tennessee River Valley and the generation of electricity is incidental to this activity of flood-control37. It may be wholly unnecessary to detract from the fundamental principles of law laid down in The Presidential Reference (supra), which would be an inevitable consequence, if the contentions advanced on behalf of the Appellants to the effect that the Tariff Regulations must override the provisions of the Act of 1948 as the said Regulations are statutory in character is to be accepted. This is also what has been subsequently emphasised by this Court in Bharathidasan University and Anr. (supra) and Samsthanan Chethu Thozhilali Union (supra). No error, therefore, can also be found in the implicit reliance placed on the ratio of the above decisions by the learned Appellate Tribunal in its order dated 23rd November, 2007On a careful reading of the aforesaid later part of the fourth proviso to Section 14 of the Act of 2003, it is seen that it is clearly a substantive provision to lay down something more than what a proviso generally deals with. If the intention of the proviso was to exclude DVC only from the main part of Section 14 of the Act of 2003 dealing with the requirement of obtaining licence for transmission/distribution/trade in electricity, the purpose is fully achieved by the first part recognising DVC as a deemed licensee and not requiring to apply for and obtain licence. The Legislature could have simply stopped there. There was no necessity to incorporate the second part. The second part of the fourth proviso is to bring in the continued application of some of the provisions of the Act of 1948 which are not inconsistent with the provisions of the Act of 2003. To elaborate it further, let us take the case of the third proviso to Section 14 of the Act of 2003 which provides "that in case an appropriate Government transmits electricity or distributes electricity or undertakes trading in electricity whether before or after the commencement of the Act, such Government shall be deemed to be a licensee under the Act but shall not be required to obtain licence under the Act". In so far as DVC is concerned, if the fourth proviso is to be confined only to licensing as in the case of third proviso, the fourth proviso also would have stopped with the first part of the proviso. There would have been no necessity to incorporate the second part of the proviso. The legislature does not incorporate any words which are irrelevant or redundant and every expression used in a statutory provision has some purpose42. A careful comparative reading of the third and the fourth provisos to Section 14 of the Act of 2003 clearly indicates the intention of the legislature that the second part of the fourth proviso is to bring in the continued application of some of the provisions of the Act of 1948 which are not inconsistent with the provisions of the Act of 2003. There are no licensing provisions in the Act of 1948 to be saved. The obvious reference in the second part of proviso is to provide for the continued application of the provisions of the Act of 1948 insofar as they are not inconsistent with the provisions of the Act of 2003A perusal of Sections 18 and 19 of the Act of 1948 show that they deal with the supply and generation of electrical energy and distribution of electricity within the Damodar Valley area. The provisions of the Act of 2003 which authorise the Regulatory Commissions to grant licence to persons (other than DVC) fully govern the field and there is no question of continued application of the Act of 1948 in that respect. Sections 18 and 19 of the Act of 1948 do not deal with licence to DVC. These provisions only deal with activities of other entities to distribute electricity within the Damodar Valley area. Further, the provisions of Electricity Act, 2003 authorizes the Regulatory Commissions to grant licence to persons other than DVC. Therefore, there can be no question of continued application of the Act of 1948 over those provisions47. On the other hand, it would appear from the record of the proceedings of the Parliamentary Standing Committee that the Industry represented by Chhotanagpur Chamber of Commerce & Industry and The Bengal Chamber of Commerce & Industry as well as the States of Jharkhand and West Bengal had contested the claims made by the Corporation for exemption and had pleaded before the Parliamentary Standing Committee that the Act of 1948 itself be repealed/amended insofar as all non-power related activities are concerned which constitute only about 10% of the total activities of the Corporation48. After considering the respective stands taken, the Parliamentary Standing Committee had recommended that the Corporation should be exempted from the operation of the provisions of the proposed 2003 Act in view of the special status and responsibilities of the Corporation as envisaged under the Parliamentary enactment constituting it (i.e. the Act of 1948). However, it appears that Parliament was not inclined to provide a blanket/total exemption in favour of the Corporation and the 2003 Act did not include the Corporation as one of the entities in Section 173 of the 2003 Act which provides exemption in so far as the provisions of the Consumer Protection Act, 1986, the Atomic Energy Act, 1962 and the Railways Act, 1989 clearly excluding the provisions of the Act of 1948 therefrom. Instead, the fourth proviso to Section 14 of the 2003 Act was specifically incorporated, details of which have already been noted. Having regard to the legislative history behind the enactment of the provision of Section 173 and the provisions of Section 14 including the fourth proviso thereto, it may be more in consonance with the Parliamentary intention to hold that the fourth proviso to Section 14 need not be understood to be confined only to the question of licensing which is dealt with by the main part of the Section 14. Rather, we are inclined to hold that Parliament had intended to provide partial exemption to the Corporation by mandating that such provisions of the Act of 1948 which are not inconsistent with the 2003 Act will continue to hold the field. Viewed thus, the fourth proviso to Section 14 of the Electricity Act 2003 has to be understood to be a legislative exercise in the nature of a substantial provision of law. Part IV of the Act of 1948 not being inconsistent with the provisions of the 2003 Act can, therefore, be taken into account for determination of tariff. Such provisions of the Act of 1948 will also have an overriding effect over the inconsistent provisions of the Tariff Regulations. Our view, as above, will also effectuate the provisions of the Act of 1948 in so far as the activities of the Corporation, other than generation and transmission of electricity, is concerned. We, therefore, affirm the above view taken by the Appellate Tribunal for the reasons afore-stated50. Insofar as the questions under the last two issues at (g) and (h) above is concerned, the same have already been dealt with in the present order. Of the remaining heads of tariff fixation, it appears that so far as the depreciation rate and sinking fund is concerned it is the provisions of Section 40 of the Act of 1948 which have been held to be determinative. We have gone through the reasoning adopted by the learned Appellate Tribunal in this regard. Having clarified the manner in which the fourth proviso to Section 14 of the 2003 Act has to be understood, we do not find the reasoning adopted by the learned Appellate Tribunal on the issues relating to depreciation and sinking fund to be fundamentally flawed in any manner so as to give rise to a substantial question of law requiring our intervention/interference Under Section 125 of the 2003 Act51. Insofar as the debt-equity ratio is concerned, we find that except for the projects which have been completed prior to 1992 in which case the ratio has been worked out at par with other public-sector organisation at 50:50, the ratio of 70:30 has been adopted following the prescription under Regulation 20 of the Tariff Regulations in the absence of any specific rate under the Act of 194852. So far as the pension and gratuity fund is concerned, the only issue arising is whether the fund worked out on Actuary basis at Rs. 1534.49 crores should be apportioned between the Corporation and the consumers as held by the CERC in the ratio of 40:60 or the entire fund should be allowed to be recovered by way of tariff from the consumers as held by the learned Appellate Tribunal53. A careful consideration of the reasoning adopted by the learned Appellate Tribunal would not disclose any such error so as to warrant interference of this Court. No error or fallacy, ex facie, is disclosed in the reasoning adopted so as to justify interference Under Section 125 of the 2003 Act54. Insofar as the consumers (Appellants in Civil Appeal Nos. 971-973 of 2008) are concerned, an additional issue has been struck, as noticed earlier. This is with regard to the number of employees engaged in the power sector by the Corporation for whom alone proportionate recovery by way of tariff so far as the pension and gratuity is concerned, would be justifiable. Apart from the fact that the issue was not raised in any of the forums below and had been so raised before this Court for the first time and that too in the course of the arguments advanced, the materials on record do not justify a conclusion to be reached by us which will support the core basis of the contention made, namely, that the Corporation had not laid before the CERC any materials to show the extent of the work-force deployed in the power sector of the Corporation. In fact, in the counter arguments advanced on behalf of the Corporation this contention has been refuted and it is asserted that such materials were, indeed, laid before the CERC, a fact which we find to be correct55. Insofar as the issue of allowance of cost relating to other activities of the Corporation to be recovered through tariff on electricity is concerned, we have taken note of the objection(s) raised in this regard which in sum and substance is that Sections 32 and 33 of the Act of 1948 are in direct conflict with Sections 41 and 51 of the 2003 Act and, therefore, recovery of cost incurred in "other works" undertaken by the Corporation through power tariff is wholly untenable. Apart from reiterating the basis on which we have thought it proper to affirm the findings of the learned Appellate Tribunal on the purport and scope of the fourth proviso to Section 14 of the 2003 Act and the continued operation of the provisions of the Act of 1948 which are not inconsistent with the provisions of the 2003 Act, we have also taken note of the specific provisions contained in Sections 41 and 51 of the 2003 Act which, inter alia, require maintenance of separate accounts of the other business undertaken by transmission/distribution licensees so as to ensure that the returns from the transmission/distribution business of electricity do not subsidize any other such business. Not only Sections 41 and 51 of the 2003 Act contemplate prior approval of the Appropriate Commission before a licensee can engage in any other business other than that of a licensee under the 2003 Act, what is contemplated by the aforesaid provisions of the 2003 Act is some return or earning of revenue from such business. In the instant case, the "other activities" of the Corporation are not optional as contemplated Under Sections 41/51 of the 2003 Act but are mandatorily cast by the statute i.e. Act of 1948 which, being in the nature of socially beneficial measures, per se, do not entail earning of any revenue so as to require maintenance of separate accounts. The allowance of recovery of cost incurred in connection with "other activities" of the Corporation from the common fund generated by tariff chargeable from the consumers/customers of electricity as contemplated by the provisions of the Act of 1948, therefore, do not collide or is, in any manner, inconsistent with the provisions of the 2003 Act. We will, therefore, have no occasion to interfere with the findings recorded by the learned Appellate Tribunal on the above score. | 0 | 11,253 | 2,668 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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by the learned Appellate Tribunal in this regard. Having clarified the manner in which the fourth proviso to Section 14 of the 2003 Act has to be understood, we do not find the reasoning adopted by the learned Appellate Tribunal on the issues relating to depreciation and sinking fund to be fundamentally flawed in any manner so as to give rise to a substantial question of law requiring our intervention/interference Under Section 125 of the 2003 Act. 51. Insofar as the debt-equity ratio is concerned, we find that except for the projects which have been completed prior to 1992 in which case the ratio has been worked out at par with other public-sector organisation at 50:50, the ratio of 70:30 has been adopted following the prescription under Regulation 20 of the Tariff Regulations in the absence of any specific rate under the Act of 1948. 52. So far as the pension and gratuity fund is concerned, the only issue arising is whether the fund worked out on Actuary basis at Rs. 1534.49 crores should be apportioned between the Corporation and the consumers as held by the CERC in the ratio of 40:60 or the entire fund should be allowed to be recovered by way of tariff from the consumers as held by the learned Appellate Tribunal. The reasoning of the learned Appellate Tribunal in coming to the aforesaid conclusion is as follows: D. 3 As a general rule, once the Commission, after prudence check, has agreed with the need for funding the Pension and Gratuity Contribution funds, DVC should have been allowed to recover entire amount from the consumers through the tariff. Asking DVC to contribute out of its own resources would tantamount to denying it the return on equity as assured in terms of Tariff Regulations. However, if we look at it from the point of view of the consumers, the consumers, particularly the industrial and commercial ones, have now no option to adjust their sale price to take into consideration the need for meeting the accumulated liability. It is, therefore, an accepted fact that due to postponing of the creation of such fund, the consumers were enjoying lesser tariff than the legitimate tariff otherwise applicable to them. 53. A careful consideration of the reasoning adopted by the learned Appellate Tribunal would not disclose any such error so as to warrant interference of this Court. No error or fallacy, ex facie, is disclosed in the reasoning adopted so as to justify interference Under Section 125 of the 2003 Act. 54. Insofar as the consumers (Appellants in Civil Appeal Nos. 971-973 of 2008) are concerned, an additional issue has been struck, as noticed earlier. This is with regard to the number of employees engaged in the power sector by the Corporation for whom alone proportionate recovery by way of tariff so far as the pension and gratuity is concerned, would be justifiable. Apart from the fact that the issue was not raised in any of the forums below and had been so raised before this Court for the first time and that too in the course of the arguments advanced, the materials on record do not justify a conclusion to be reached by us which will support the core basis of the contention made, namely, that the Corporation had not laid before the CERC any materials to show the extent of the work-force deployed in the power sector of the Corporation. In fact, in the counter arguments advanced on behalf of the Corporation this contention has been refuted and it is asserted that such materials were, indeed, laid before the CERC, a fact which we find to be correct. 55. Insofar as the issue of allowance of cost relating to other activities of the Corporation to be recovered through tariff on electricity is concerned, we have taken note of the objection(s) raised in this regard which in sum and substance is that Sections 32 and 33 of the Act of 1948 are in direct conflict with Sections 41 and 51 of the 2003 Act and, therefore, recovery of cost incurred in "other works" undertaken by the Corporation through power tariff is wholly untenable. Apart from reiterating the basis on which we have thought it proper to affirm the findings of the learned Appellate Tribunal on the purport and scope of the fourth proviso to Section 14 of the 2003 Act and the continued operation of the provisions of the Act of 1948 which are not inconsistent with the provisions of the 2003 Act, we have also taken note of the specific provisions contained in Sections 41 and 51 of the 2003 Act which, inter alia, require maintenance of separate accounts of the other business undertaken by transmission/distribution licensees so as to ensure that the returns from the transmission/distribution business of electricity do not subsidize any other such business. Not only Sections 41 and 51 of the 2003 Act contemplate prior approval of the Appropriate Commission before a licensee can engage in any other business other than that of a licensee under the 2003 Act, what is contemplated by the aforesaid provisions of the 2003 Act is some return or earning of revenue from such business. In the instant case, the "other activities" of the Corporation are not optional as contemplated Under Sections 41/51 of the 2003 Act but are mandatorily cast by the statute i.e. Act of 1948 which, being in the nature of socially beneficial measures, per se, do not entail earning of any revenue so as to require maintenance of separate accounts. The allowance of recovery of cost incurred in connection with "other activities" of the Corporation from the common fund generated by tariff chargeable from the consumers/customers of electricity as contemplated by the provisions of the Act of 1948, therefore, do not collide or is, in any manner, inconsistent with the provisions of the 2003 Act. We will, therefore, have no occasion to interfere with the findings recorded by the learned Appellate Tribunal on the above score.
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the provisions of the 2003 Act can, therefore, be taken into account for determination of tariff. Such provisions of the Act of 1948 will also have an overriding effect over the inconsistent provisions of the Tariff Regulations. Our view, as above, will also effectuate the provisions of the Act of 1948 in so far as the activities of the Corporation, other than generation and transmission of electricity, is concerned. We, therefore, affirm the above view taken by the Appellate Tribunal for the reasons afore-stated50. Insofar as the questions under the last two issues at (g) and (h) above is concerned, the same have already been dealt with in the present order. Of the remaining heads of tariff fixation, it appears that so far as the depreciation rate and sinking fund is concerned it is the provisions of Section 40 of the Act of 1948 which have been held to be determinative. We have gone through the reasoning adopted by the learned Appellate Tribunal in this regard. Having clarified the manner in which the fourth proviso to Section 14 of the 2003 Act has to be understood, we do not find the reasoning adopted by the learned Appellate Tribunal on the issues relating to depreciation and sinking fund to be fundamentally flawed in any manner so as to give rise to a substantial question of law requiring our intervention/interference Under Section 125 of the 2003 Act51. Insofar as the debt-equity ratio is concerned, we find that except for the projects which have been completed prior to 1992 in which case the ratio has been worked out at par with other public-sector organisation at 50:50, the ratio of 70:30 has been adopted following the prescription under Regulation 20 of the Tariff Regulations in the absence of any specific rate under the Act of 194852. So far as the pension and gratuity fund is concerned, the only issue arising is whether the fund worked out on Actuary basis at Rs. 1534.49 crores should be apportioned between the Corporation and the consumers as held by the CERC in the ratio of 40:60 or the entire fund should be allowed to be recovered by way of tariff from the consumers as held by the learned Appellate Tribunal53. A careful consideration of the reasoning adopted by the learned Appellate Tribunal would not disclose any such error so as to warrant interference of this Court. No error or fallacy, ex facie, is disclosed in the reasoning adopted so as to justify interference Under Section 125 of the 2003 Act54. Insofar as the consumers (Appellants in Civil Appeal Nos. 971-973 of 2008) are concerned, an additional issue has been struck, as noticed earlier. This is with regard to the number of employees engaged in the power sector by the Corporation for whom alone proportionate recovery by way of tariff so far as the pension and gratuity is concerned, would be justifiable. Apart from the fact that the issue was not raised in any of the forums below and had been so raised before this Court for the first time and that too in the course of the arguments advanced, the materials on record do not justify a conclusion to be reached by us which will support the core basis of the contention made, namely, that the Corporation had not laid before the CERC any materials to show the extent of the work-force deployed in the power sector of the Corporation. In fact, in the counter arguments advanced on behalf of the Corporation this contention has been refuted and it is asserted that such materials were, indeed, laid before the CERC, a fact which we find to be correct55. Insofar as the issue of allowance of cost relating to other activities of the Corporation to be recovered through tariff on electricity is concerned, we have taken note of the objection(s) raised in this regard which in sum and substance is that Sections 32 and 33 of the Act of 1948 are in direct conflict with Sections 41 and 51 of the 2003 Act and, therefore, recovery of cost incurred in "other works" undertaken by the Corporation through power tariff is wholly untenable. Apart from reiterating the basis on which we have thought it proper to affirm the findings of the learned Appellate Tribunal on the purport and scope of the fourth proviso to Section 14 of the 2003 Act and the continued operation of the provisions of the Act of 1948 which are not inconsistent with the provisions of the 2003 Act, we have also taken note of the specific provisions contained in Sections 41 and 51 of the 2003 Act which, inter alia, require maintenance of separate accounts of the other business undertaken by transmission/distribution licensees so as to ensure that the returns from the transmission/distribution business of electricity do not subsidize any other such business. Not only Sections 41 and 51 of the 2003 Act contemplate prior approval of the Appropriate Commission before a licensee can engage in any other business other than that of a licensee under the 2003 Act, what is contemplated by the aforesaid provisions of the 2003 Act is some return or earning of revenue from such business. In the instant case, the "other activities" of the Corporation are not optional as contemplated Under Sections 41/51 of the 2003 Act but are mandatorily cast by the statute i.e. Act of 1948 which, being in the nature of socially beneficial measures, per se, do not entail earning of any revenue so as to require maintenance of separate accounts. The allowance of recovery of cost incurred in connection with "other activities" of the Corporation from the common fund generated by tariff chargeable from the consumers/customers of electricity as contemplated by the provisions of the Act of 1948, therefore, do not collide or is, in any manner, inconsistent with the provisions of the 2003 Act. We will, therefore, have no occasion to interfere with the findings recorded by the learned Appellate Tribunal on the above score.
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Maharashtra State Mining Corporation Employees’ Union (Affiliated To Rashtriya Shramik Congress) & Others Vs. State of Maharashtra Trade Commerce & Mining Department Mantralaya, Through Its Secretary & Another | He stated that State Government has given cogent reasons for providing uniformity and those reasons are not in dispute. Members of petitioner-Union in Writ Petition No.2004/2002 or petitioner in Writ Petition No.5223/2004 have not worked after reaching age of 58 years and hence are not entitled to any wages or other benefits. As there are no allegation of any malice, the petitioners should not be given any relief and petitions should be dismissed.12. With the assistance of respective counsel, we have perused the papers. The Articles of Association of company i.e. Maharashtra State Mining Corporation Limited are not in dispute. Article 75 on which parties have placed reliance is as under : 75. Without prejudice to the generality of the above provisions, the Board shall reserve for decision of the State Government - (1) rules of the company governing the conditions of service of the employees, Provident Fund and other rules, creation of Reserve and Special Fund; (2) sale, lease or disposal otherwise of the whole or substantially the whole of the undertaking of the company; (3) formation of a subsidiary Company.13. The provisions relied upon by Adv. Marpakwar which cloathe Board of Directors of company with power to frame service conditions are contained in chapter XII. In chapter XII in clause (5) power has been given to Board of Directors to appoint and remove, suspend Managers, Secretaries, Officers, Clerks, Agents and servants, for permanent temporary or special services and to fix and determine their duties, salaries, emoluments. It is stipulated that no appointment to a post of which maximum pay is more than 2000 per month can be made without prior approval of State Government. Clause (16) permits Board of Directors to make, vary and repeal from time to time byelaws for regulation of business of company, its officers and servants. Clause (17) empowers Board to give or allow any bonus, pension, gratuity, compensation to any employee of the company. These clauses therefore show that bye-laws to regulate the business of officers or servants including their service conditions need to be framed only by Board of Directors. It is not in dispute that accordingly the Conduct, Discipline and Appeal Rules have been framed by Board of Directors. Article 75 reproduced supra required Board to reserve for decision of State Government Rules of company governing conditions of service of employees, provident fund and other rules. These bye-laws or rules were accordingly sent to State Government and in exercise of these powers, State Government has granted necessary approval through its General Administration Department on 16th August,1982. Approval has been published by Ministry of Industries, Energy and Labour Department of State Government in October, 1982. These Service Rules or Bye-laws titled Conduct, Discipline and Appeal Rules of Maharashtra State Mining Corporation Limited are in force since then. The provision relating to superannuation is contained in these Rules and it is already reproduced by us supra.14. Thus, the power to frame Service Rules and to decide service conditions with Board of Directors of respondent-company and in exercise of that power, age of superannuation has been determined at 60. The Rules could not have been brought into force without getting it approved from State Government but State Government approved it in August, 1982. Thus, 60 is the stipulated age of superannuation in these Service bye-laws or service rules. Service Rule reproduced supra itself mentions that age of superannuation has to be 60 years or then such other age as may be agreed upon between management and employees by any agreement, settlement or award. Such agreement, settlement or award has to be binding on the Management and the employees for the time being force. Neither petitioners nor management has pointed out any agreement, settlement or award. 60 is the age stipulated in Service Rules approved by State Government and that age therefore is the age of superannuation in terms of various provisions mentioned supra, and remained to be so till 24.10.2001.15. On 24.10.2001 State Government has come up with a Government Resolution and reduced that age from 60 to 58 years. The reason therefor is the age of superannuation of State Government employees. One fails to understand why employees of State Government needed to be compared with employees of Mining Corporation (company) for this purpose. There is no explanation tendered either by company or then by State Government in this respect.16. The State Government also has not quoted any power or sanction used by it for issuing this resolution dated 24.10.2001. When the Articles of Association do not empower the State Government to issue any directions and service conditions are to be framed by the Board of Directors of Mining Corporation, the State Government itself for any reason could not have brought down the age of superannuation. This exercise of power by State Government is not supported by any legal provision.17. The petitioner-Trade Union in Writ Petition No.2004/2002 has gone to Industrial Court and filed ULP (Complaint) under Unfair Labour Practice under item 9 Schedule IV of MRTU & PULP Act, because of violation of Section 9A of Industrial Disputes Act. It appears that if their contention that provisions of Industrial Employment Standing Orders Act and Model Standing Orders framed therein which prescribe age of superannuation to be 60 years, has to prevail over GR dated 24.10.2001 is accepted, the age of superannuation even, in that case, would have been 60 only for all those who qualify as workmen under Section 2(s) of Industrial Disputes Act. Mr. Marpakwar has relied upon the judgment of Honble Apex Court in the case of The U.P. State Electricity Board and another vs. Hari Shankar Jain and others, reported at (1978) 4 SCC 16. 18. Here, as we find that the power to determine age of superannuation is exclusively with the Board of Directors of Mining Corporation and Board of Directors has not resolved either before or after 24.10.2001 to bring it down to 58 years, the age of superannuation stipulated in clause (ix) supra, must operate and prevail. | 1[ds]18. Here, as we find that the power to determine age of superannuation is exclusively with the Board of Directors of Mining Corporation and Board of Directors has not resolved either before or after 24.10.2001 to bring it down to 58 years, the age of superannuation stipulated in clause (ix) supra, must operate and prevail. | 1 | 2,233 | 66 | ### 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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He stated that State Government has given cogent reasons for providing uniformity and those reasons are not in dispute. Members of petitioner-Union in Writ Petition No.2004/2002 or petitioner in Writ Petition No.5223/2004 have not worked after reaching age of 58 years and hence are not entitled to any wages or other benefits. As there are no allegation of any malice, the petitioners should not be given any relief and petitions should be dismissed.12. With the assistance of respective counsel, we have perused the papers. The Articles of Association of company i.e. Maharashtra State Mining Corporation Limited are not in dispute. Article 75 on which parties have placed reliance is as under : 75. Without prejudice to the generality of the above provisions, the Board shall reserve for decision of the State Government - (1) rules of the company governing the conditions of service of the employees, Provident Fund and other rules, creation of Reserve and Special Fund; (2) sale, lease or disposal otherwise of the whole or substantially the whole of the undertaking of the company; (3) formation of a subsidiary Company.13. The provisions relied upon by Adv. Marpakwar which cloathe Board of Directors of company with power to frame service conditions are contained in chapter XII. In chapter XII in clause (5) power has been given to Board of Directors to appoint and remove, suspend Managers, Secretaries, Officers, Clerks, Agents and servants, for permanent temporary or special services and to fix and determine their duties, salaries, emoluments. It is stipulated that no appointment to a post of which maximum pay is more than 2000 per month can be made without prior approval of State Government. Clause (16) permits Board of Directors to make, vary and repeal from time to time byelaws for regulation of business of company, its officers and servants. Clause (17) empowers Board to give or allow any bonus, pension, gratuity, compensation to any employee of the company. These clauses therefore show that bye-laws to regulate the business of officers or servants including their service conditions need to be framed only by Board of Directors. It is not in dispute that accordingly the Conduct, Discipline and Appeal Rules have been framed by Board of Directors. Article 75 reproduced supra required Board to reserve for decision of State Government Rules of company governing conditions of service of employees, provident fund and other rules. These bye-laws or rules were accordingly sent to State Government and in exercise of these powers, State Government has granted necessary approval through its General Administration Department on 16th August,1982. Approval has been published by Ministry of Industries, Energy and Labour Department of State Government in October, 1982. These Service Rules or Bye-laws titled Conduct, Discipline and Appeal Rules of Maharashtra State Mining Corporation Limited are in force since then. The provision relating to superannuation is contained in these Rules and it is already reproduced by us supra.14. Thus, the power to frame Service Rules and to decide service conditions with Board of Directors of respondent-company and in exercise of that power, age of superannuation has been determined at 60. The Rules could not have been brought into force without getting it approved from State Government but State Government approved it in August, 1982. Thus, 60 is the stipulated age of superannuation in these Service bye-laws or service rules. Service Rule reproduced supra itself mentions that age of superannuation has to be 60 years or then such other age as may be agreed upon between management and employees by any agreement, settlement or award. Such agreement, settlement or award has to be binding on the Management and the employees for the time being force. Neither petitioners nor management has pointed out any agreement, settlement or award. 60 is the age stipulated in Service Rules approved by State Government and that age therefore is the age of superannuation in terms of various provisions mentioned supra, and remained to be so till 24.10.2001.15. On 24.10.2001 State Government has come up with a Government Resolution and reduced that age from 60 to 58 years. The reason therefor is the age of superannuation of State Government employees. One fails to understand why employees of State Government needed to be compared with employees of Mining Corporation (company) for this purpose. There is no explanation tendered either by company or then by State Government in this respect.16. The State Government also has not quoted any power or sanction used by it for issuing this resolution dated 24.10.2001. When the Articles of Association do not empower the State Government to issue any directions and service conditions are to be framed by the Board of Directors of Mining Corporation, the State Government itself for any reason could not have brought down the age of superannuation. This exercise of power by State Government is not supported by any legal provision.17. The petitioner-Trade Union in Writ Petition No.2004/2002 has gone to Industrial Court and filed ULP (Complaint) under Unfair Labour Practice under item 9 Schedule IV of MRTU & PULP Act, because of violation of Section 9A of Industrial Disputes Act. It appears that if their contention that provisions of Industrial Employment Standing Orders Act and Model Standing Orders framed therein which prescribe age of superannuation to be 60 years, has to prevail over GR dated 24.10.2001 is accepted, the age of superannuation even, in that case, would have been 60 only for all those who qualify as workmen under Section 2(s) of Industrial Disputes Act. Mr. Marpakwar has relied upon the judgment of Honble Apex Court in the case of The U.P. State Electricity Board and another vs. Hari Shankar Jain and others, reported at (1978) 4 SCC 16. 18. Here, as we find that the power to determine age of superannuation is exclusively with the Board of Directors of Mining Corporation and Board of Directors has not resolved either before or after 24.10.2001 to bring it down to 58 years, the age of superannuation stipulated in clause (ix) supra, must operate and prevail.
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1
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18. Here, as we find that the power to determine age of superannuation is exclusively with the Board of Directors of Mining Corporation and Board of Directors has not resolved either before or after 24.10.2001 to bring it down to 58 years, the age of superannuation stipulated in clause (ix) supra, must operate and prevail.
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Gobald Motor Service Ltd. & Another Vs. R. M. K. Veluswami & Others | credit should be given in assessing the damages under the Fatal Accidents Acts, for what was given to him under the Law Reform Act, 1934. So too, in Ellis v. Raine, 1939-2 KB 180 where the parents of an infant, who had been negligently killed in an accident, claimed damages under both the Acts, Goddard, L. J., reaffirmed the view that where the parties who would benefit from the damages awarded under the Fatal Accidents Acts were the same as those who would benefit from the damages awarded under the Law Reform Act, the damages under the Fatal Accidents Acts must be reduced by the amount given as loss under the Law Reform Act. Finally the same view has been reaffirmed and restated with clarity in 1942 AC 601. There Lord Macnmillan described the nature of the two heads thus at p. 610:"The rights of action in the two cases are quite distinct and independent. Under the Law Reform Act the right of action is for the benefit of the deceaseds estate; under the Fatal Accidents Acts the right of action is for the benefit of the deceaseds dependents. But, inasmuch as the basis of both causes of action may be the same, namely, negligence of a third party which has caused the deceaseds death, it was natural to provide that the rights of action should be without prejudice the one to the other. It is quite a different thing to read the provision as meaning that in assessing damages payable to dependants under the Fatal Accidents Acts no account is to be taken of any benefit which the dependants may indirectly obtain from an award under the Law Reform Act through participation in the deceaseds estate. . . . . . . . . . . . , it is appropriate that any benefit taken indirectly by a dependant by way of participation in an award under the Law Reform Act should be taken into account in estimating the damages awarded to that dependant under the Fatal Accidents Acts."Lord Wright addressed himself to the same question and answered it at p. 614 thus;"The injury suffered by the individual from the death cannot be computed without reference to the benefit also accruing from the death to the same individual from whatever source."The principle in its application to the Indian Act has been clearly and succinctly stated by a Division Bench of the Lahore High Court in Secretary of State v. Gokal Chand, ILR 6 Lah 451: (AIR 1925 Lah 636). In that case, Sir Shadi Lal, C. J., observed at p. 453 (of ILR Lah.) : (at p. 636 of AIR) thus :"The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate."An illustration may clarify the position. X is the income of the estate of the deceased, Y is the Yearly expenditure incurred by him on his dependants (we will ignore the other expenditure incurred by him). X-Y, i. e., Z, is the amount he saves every year. The capitalised value of the income spent on the dependants, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are,the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under S. 1 representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under S. 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under S. 1 they got capitalised value of Y, under S. 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income.12. The law on this branch of the subject may be briefly stated thus : The rights of action under Ss. 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under S. 1 of the Act, that portion shall be excluded in giving compensation under S. 2 and vice versa.13. In the instant case, under S.1 of the Act both the courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200/-. This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them. Under S. 2 both the courts awarded damages for the loss to the estate in a sum of Rs. 5,000/-.That figure represents the damages for the mental agony, suffering and loss of expectation of life. There was no duplication in awarding damages under both the heads. No material has been placed before us to enable us to take a different view in regard to the amount of compensation under S. 2 of the Act. | 1[ds]That apart, it cannot be said that the bus maintained an even pace throughout. The High Court, on the basis of the evidence and on broad probabilities, held that the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened; and having gone through the evidence, we are quite satisfied that the said finding was justified on the material placed before them. It must, therefore, be held that there was negligence on the part of the driver.5. Apart from the positive evidence, in the present case the accident took place not on the main road, but on the off-side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus could stop only after travelling some more distance from the said tree. The said facts give rise to a presumption that the accident was caused by the negligence of thesaid principles directly apply to the present case. Here, the events happened tell their own story and there is a presumption that the accident was caused by negligence on the part of the appellants. But it is said that this presumption was rebutted by proof that the accident was due to the rear central bolt of the bus suddenly giving way. The High Court, after considering the relevant evidence, held that it was not possible to hold that the accident was caused by the break in the bolt. We have gone through the evidence and we do not see any flaw in thatthe present case, admittedly, on account of the negligence of the driver in the course of his employment the said accident happened, and, therefore, the appellants are liablewould be seen from the said mode of estimation that many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death that is, the balance of loss and gain to a dependant by the death must bethe courts below have, on relevant. material placed before them, ascertained the said amount as damages under the first head, we cannot in second appeal disturb the said finding except for compelling reasons.Assuming that Rajaratnam had not died, he would have spent, having regard to his means and status in life, a minimum of Rs. 250/- on respondents 2 to 7; and his income, as indicated by the evidence, would certainly be more than that amount. The yearly expenditure he had to incur on the members of the family would have been about Rs. 3,000/- and the sum of Rs. 25,200/would represent the said expenditure for just over 8 years9. In the circumstances, the balance of loss and gain to the dependant by the death of Rajaratnam, in the sense stated by Lord Wright and Viscount Simon, could not be less than Rs. 25,200/-; indeed, having regard to the circumstances of the case, it is a moderate sum; it is rather a conservative estimate. We, therefore, accept that figure as representing the damages for respondents 2 to 7 in respect of their claim under the head of pecuniary loss to them by the death of Rajaratnam.10. The last contention raises an interesting point. Under S. 2 of the Act the respondents 2 to 7 were awarded Rs. 5,000/as damages for loss of expectation of life. It was contended that this amount should go in reduction of Rs. 25,200/- awarded under S. I of the Act on the ground that otherwise it would be duplication of damages in respect of the same wrong.The law on this branch of the subject may be briefly stated thus : The rights of action under Ss. 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under S. 1 of the Act, that portion shall be excluded in giving compensation under S. 2 and vice versa.13. In the instant case, under S.1 of the Act both the courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200/-. This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them. Under S. 2 both the courts awarded damages for the loss to the estate in a sum of Rs. 5,000/-.That figure represents the damages for the mental agony, suffering and loss of expectation of life. There was no duplication in awarding damages under both the heads. No material has been placed before us to enable us to take a different view in regard to the amount of compensation under S. 2 of the Act. | 1 | 5,975 | 1,001 | ### Instruction:
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credit should be given in assessing the damages under the Fatal Accidents Acts, for what was given to him under the Law Reform Act, 1934. So too, in Ellis v. Raine, 1939-2 KB 180 where the parents of an infant, who had been negligently killed in an accident, claimed damages under both the Acts, Goddard, L. J., reaffirmed the view that where the parties who would benefit from the damages awarded under the Fatal Accidents Acts were the same as those who would benefit from the damages awarded under the Law Reform Act, the damages under the Fatal Accidents Acts must be reduced by the amount given as loss under the Law Reform Act. Finally the same view has been reaffirmed and restated with clarity in 1942 AC 601. There Lord Macnmillan described the nature of the two heads thus at p. 610:"The rights of action in the two cases are quite distinct and independent. Under the Law Reform Act the right of action is for the benefit of the deceaseds estate; under the Fatal Accidents Acts the right of action is for the benefit of the deceaseds dependents. But, inasmuch as the basis of both causes of action may be the same, namely, negligence of a third party which has caused the deceaseds death, it was natural to provide that the rights of action should be without prejudice the one to the other. It is quite a different thing to read the provision as meaning that in assessing damages payable to dependants under the Fatal Accidents Acts no account is to be taken of any benefit which the dependants may indirectly obtain from an award under the Law Reform Act through participation in the deceaseds estate. . . . . . . . . . . . , it is appropriate that any benefit taken indirectly by a dependant by way of participation in an award under the Law Reform Act should be taken into account in estimating the damages awarded to that dependant under the Fatal Accidents Acts."Lord Wright addressed himself to the same question and answered it at p. 614 thus;"The injury suffered by the individual from the death cannot be computed without reference to the benefit also accruing from the death to the same individual from whatever source."The principle in its application to the Indian Act has been clearly and succinctly stated by a Division Bench of the Lahore High Court in Secretary of State v. Gokal Chand, ILR 6 Lah 451: (AIR 1925 Lah 636). In that case, Sir Shadi Lal, C. J., observed at p. 453 (of ILR Lah.) : (at p. 636 of AIR) thus :"The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate."An illustration may clarify the position. X is the income of the estate of the deceased, Y is the Yearly expenditure incurred by him on his dependants (we will ignore the other expenditure incurred by him). X-Y, i. e., Z, is the amount he saves every year. The capitalised value of the income spent on the dependants, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death. The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death. If the claimants under both the heads are,the same, and if they get compensation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive. Conversely, if they got compensation under S. 1 representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under S. 2 of the Act in respect of compensation for the loss caused to the estate. To put it differently, if under S. 1 they got capitalised value of Y, under S. 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income.12. The law on this branch of the subject may be briefly stated thus : The rights of action under Ss. 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under S. 1 of the Act, that portion shall be excluded in giving compensation under S. 2 and vice versa.13. In the instant case, under S.1 of the Act both the courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200/-. This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them. Under S. 2 both the courts awarded damages for the loss to the estate in a sum of Rs. 5,000/-.That figure represents the damages for the mental agony, suffering and loss of expectation of life. There was no duplication in awarding damages under both the heads. No material has been placed before us to enable us to take a different view in regard to the amount of compensation under S. 2 of the Act.
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That apart, it cannot be said that the bus maintained an even pace throughout. The High Court, on the basis of the evidence and on broad probabilities, held that the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened; and having gone through the evidence, we are quite satisfied that the said finding was justified on the material placed before them. It must, therefore, be held that there was negligence on the part of the driver.5. Apart from the positive evidence, in the present case the accident took place not on the main road, but on the off-side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus could stop only after travelling some more distance from the said tree. The said facts give rise to a presumption that the accident was caused by the negligence of thesaid principles directly apply to the present case. Here, the events happened tell their own story and there is a presumption that the accident was caused by negligence on the part of the appellants. But it is said that this presumption was rebutted by proof that the accident was due to the rear central bolt of the bus suddenly giving way. The High Court, after considering the relevant evidence, held that it was not possible to hold that the accident was caused by the break in the bolt. We have gone through the evidence and we do not see any flaw in thatthe present case, admittedly, on account of the negligence of the driver in the course of his employment the said accident happened, and, therefore, the appellants are liablewould be seen from the said mode of estimation that many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death that is, the balance of loss and gain to a dependant by the death must bethe courts below have, on relevant. material placed before them, ascertained the said amount as damages under the first head, we cannot in second appeal disturb the said finding except for compelling reasons.Assuming that Rajaratnam had not died, he would have spent, having regard to his means and status in life, a minimum of Rs. 250/- on respondents 2 to 7; and his income, as indicated by the evidence, would certainly be more than that amount. The yearly expenditure he had to incur on the members of the family would have been about Rs. 3,000/- and the sum of Rs. 25,200/would represent the said expenditure for just over 8 years9. In the circumstances, the balance of loss and gain to the dependant by the death of Rajaratnam, in the sense stated by Lord Wright and Viscount Simon, could not be less than Rs. 25,200/-; indeed, having regard to the circumstances of the case, it is a moderate sum; it is rather a conservative estimate. We, therefore, accept that figure as representing the damages for respondents 2 to 7 in respect of their claim under the head of pecuniary loss to them by the death of Rajaratnam.10. The last contention raises an interesting point. Under S. 2 of the Act the respondents 2 to 7 were awarded Rs. 5,000/as damages for loss of expectation of life. It was contended that this amount should go in reduction of Rs. 25,200/- awarded under S. I of the Act on the ground that otherwise it would be duplication of damages in respect of the same wrong.The law on this branch of the subject may be briefly stated thus : The rights of action under Ss. 1 and 2 of the Act are quite distinct and independent. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under S. 1 of the Act, that portion shall be excluded in giving compensation under S. 2 and vice versa.13. In the instant case, under S.1 of the Act both the courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200/-. This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them. Under S. 2 both the courts awarded damages for the loss to the estate in a sum of Rs. 5,000/-.That figure represents the damages for the mental agony, suffering and loss of expectation of life. There was no duplication in awarding damages under both the heads. No material has been placed before us to enable us to take a different view in regard to the amount of compensation under S. 2 of the Act.
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APOLLO ZIPPER INDIA LIMITED Vs. W. NEWMAN AND CO. LTD | deemed to have been waived. The following Para 6 of the decision is apposite which reads as under:“6. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under Section 106 of the TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the plaintiff as Ext. P-4.”60. Second, the respondent by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and 11.07.2006, sent to the appellant on the question of ownership of the suit premises and payment of rent had expressed their willingness to attorn and continue the tenancy with the appellant and also offered to pay rent to the appellant. (See pages 198 & 199 of the SLP Paper Book-order of the Single Judge)61. Third, the respondent in their civil suit (No.1183 of 2012) filed against the appellant in Paras 15, 17, 18 and relief clause (e) of the plaint admitted the ownership of the appellant over the suit premises and went to the extent of seeking the mandatory injunction against the appellant directing them to accept the monthly rent of the suit premises from the respondent.62. In other words, reading of the aforementioned paras in the respondent’s plaint including the relief clause (e) would go to show that the respondent was all along willing to accept and indeed actually accepted the ownership of the appellant over the suit premises and, therefore, sought mandatory injunction against the appellant to accept them as tenant. The conduct of the respondent, therefore, disentitles them to now raise a new plea questioning the title of the appellant over the suit premises and a plea of attornment. Both, in our opinion, are wholly misconceived pleas and, therefore, deserve to be rejected.63. As mentioned above, the title of the landlord over the tenanted premises in a suit for eviction cannot be examined like a title suit. Similarly, the attornment can be proved by several circumstances including taking into consideration the conduct of the tenant qua landlord.64. The aforesaid three circumstances, in our opinion, are, therefore, more than sufficient to record a finding that the appellant was prima facie able to prove their title over the suit premises so also was able to prove the factum of“attornment”made by the respondent in relation to the suit premises in appellant’s favour thereby entitling the appellant to determine the contractual tenancy which was devolved upon them by operation of law.65. In the light of the foregoing discussion, we are unable to agree with the view taken by the Division Bench that there was some dispute or confusion as to who is the owner of the suit premises. In our view, there was neither any dispute and nor confusion and nor any ambiguity over the question of title over the suit premises which needed any elaborate inquiry.66. This takes us to examine the next question as to what was the monthly rent of the suit premises – whether Rs.1600/- towards monthly rent and Rs.38,400/- towards maintenance charges as claimed by the respondent or Rs.40,000/- as claimed by the appellant.67. In our view, the monthly rent of the suit premises was Rs.40,000/-. It is for the reason that Firstly, the respondent had been paying Rs.40,000/- per month to their previous landlord – GEHA for a long time; Second, the bifurcation of Rs.40,000/- was being sought by the respondent so that they may get the benefit of applicability of the Tenancy Act to defend therein tenant’s right which they failed to prove and lastly, the rent receipts filed by the parties clearly proved that the monthly rent of the suit premises was Rs.40,000/- and not Rs.1600/-.68. This takes us to examine the next question as to whether the suit filed by the appellant invoking the provisions of the TP Act was maintainable or it should have been filed under the Tenancy Act.69. In our opinion, the appellant rightly filed the suit by invoking the provisions of the TP Act. It is for the reason that once the monthly rent of the suit premises was found to exceed the limit prescribed under Section 3(f) of the Tenancy Act, the provisions of the Tenancy Act had no application to the suit premises.70. Section 3(f) of the Tenancy Act says that any premises let out for non-residential purpose when carries more than Rs. 10,000/- as monthly rent in the areas included within the limits of Municipal Corporation, the provisions of the Tenancy Act will not apply.71. In the case at hand, the monthly rent of the suit premises was Rs.40,000/- and, therefore, the appellant was well within their right to file summary suit against the tenants eviction and for recovery of the arrears of rent by taking recourse to the provisions of the TP Act read with Rule 1(B) of The Rules applicable to the suits filed on the original side jurisdiction of the High Court at Calcutta.72. In the light of the foregoing discussion, we are of the view that the respondent failed to raise any arguable and substantial defense as required under Rule 6 read with Rule 9 of the Rules and the three grounds raised for seeking leave to defend the suit were only for the sake of raising and had no factual or/and legal foundation to stand for trial in the suit and hence no leave can be granted to the respondent on such grounds under Rule 9 of the Rules. It was, therefore, rightly declined by the Single Judge but wrongly granted by the Division Bench. | 1[ds]41. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and restore the order of the Single Judge.42. In our considered opinion, the reasoning and the conclusion arrived at by the Single Judge while declining to grant leave to defend the suit to the respondent and decreeing thesuit for eviction deserves to be restored as against the impugned judgment passed by the Division Bench.43. In other words, we are of the considered opinion that the grounds, which were pressed in service by the respondent, to seek leave to defend the suit are neither arguable nor have any prima facie merit therein and, therefore, there does not arise any need to have any trial in the suit on merits on such grounds. This we say for the following reasons.It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the Rent Laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.It is equallylaw with regard to attornment that it does not create any new tenancy but once the factum of attornment is proved then by virtue of such attornment, the old tenancy continues. (See Uppalapati Veera Venkata Satyanarayanaraju & Anr. Vs. Josyula Hanumayamma & Anr. AIR 1967 SC 174 ).49. In the case at hand, we find that it is not in dispute that the original owner of the suit premises was GEHL, who had created the original contract of tenancy with the respondent in relation to the suit premises.50. It is also not in dispute that the GEHL was then acquired by the State by Act of 1975 andof 1980, as a consequence thereof, the suit premises stood vested in an authority called the GEHA by operation of law as per Section 3 read with Section 5 of80 with effectand 22.06.1981.51. It is also not in dispute that the respondent accepted this change of ownership and accordingly started paying monthly rent to the GEHA from 1980 as monthly tenant of the GEHA and which they paid till 2005.52. It is also not in dispute that in terms of the notification issued by the Governor on 05.10.2005 under Section 3(2) ofof 1980, the suit premises then stood transferred and vested in the(see notification dated 05.10.2005) by operation of law and the appellant accordingly became the owner of the suit premises with effect from 05.10.2005.53. It is further not in dispute that the GEHA and their lawyer, vide letters dated 24.02.2006 and 28.04.2006, informed the respondent about the change of ownership of the suit premises and the appellant acquiring the ownership of the suit premises vide notification dated 05.10.2005.54. In our considered opinion, the aforementioned undisputed facts, which are matter of record, are sufficient to hold in the eviction suit that the appellant became the owner of the suit premises with effect from 05.10.2005.55. In our considered view, the respondent also attorned to the appellant and accepted the ownership of the appellant over the suit premises, which is prima facie proved by the three facts and circumstances as set out below.56. First, when the appellant sent a quit notice dated 17.05.2012 to the respondent under Section 106 ofct determining the tenancy and calling upon the respondent to pay the arrears of rent and vacate the suit premises, despite receipt of the quit notice, they did not reply to it.57. In our view, the respondent ought to have replied to the notice at the first available opportunity, which they failed to do so. It amounts to waiver on their part to challenge the invalidity or infirmity of the quit notice including the ownership issue raised therein.Second, the respondent by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and 11.07.2006, sent to the appellant on the question of ownership of the suit premises and payment of rent had expressed their willingness to attorn and continue the tenancy with the appellant and also offered to pay rent to the appellant. (See pages 198 & 199 of the SLP Paperof the Single Judge)61. Third, the respondent in their civil suit (No.1183 of 2012) filed against the appellant in Paras 15, 17, 18 and relief clause (e) of the plaint admitted the ownership of the appellant over the suit premises and went to the extent of seeking the mandatory injunction against the appellant directing them to accept the monthly rent of the suit premises from the respondent.62. In other words, reading of the aforementioned paras in theplaint including the relief clause (e) would go to show that the respondent was all along willing to accept and indeed actually accepted the ownership of the appellant over the suit premises and, therefore, sought mandatory injunction against the appellant to accept them as tenant. The conduct of the respondent, therefore, disentitles them to now raise a new plea questioning the title of the appellant over the suit premises and a plea of attornment. Both, in our opinion, are wholly misconceived pleas and, therefore, deserve to be rejected.63. As mentioned above, the title of the landlord over the tenanted premises in a suit for eviction cannot be examined like a title suit. Similarly, the attornment can be proved by several circumstances including taking into consideration the conduct of the tenant qua landlord.64. The aforesaid three circumstances, in our opinion, are, therefore, more than sufficient to record a finding that the appellant was prima facie able to prove their title over the suit premises so also was able to prove the factumby the respondent in relation to the suit premises infavour thereby entitling the appellant to determine the contractual tenancy which was devolved upon them by operation of law.65. In the light of the foregoing discussion, we are unable to agree with the view taken by the Division Bench that there was some dispute or confusion as to who is the owner of the suit premises. In our view, there was neither any dispute and nor confusion and nor any ambiguity over the question of title over the suit premises which needed any elaborate inquiry.In our view, the monthly rent of the suit premises was Rs.It is for the reason that Firstly, the respondent had been paying Rs.40,000/per month to their previous landlord – GEHA for a long time; Second, the bifurcation of Rs.40,000/was being sought by the respondent so that they may get the benefit of applicability of the Tenancy Act to defend thereinright which they failed to prove and lastly, the rent receipts filed by the parties clearly proved that the monthly rent of the suit premises was Rs.40,000/9. In our opinion, the appellant rightly filed the suit by invoking the provisions oft. It is for the reason that once the monthly rent of the suit premises was found to exceed the limit prescribed under Section 3(f) of the Tenancy Act, the provisions of the Tenancy Act had no application to the suit premises.70. Section 3(f) of the Tenancy Act says that any premises let out forpurpose when carries more than Rs. 10,000/as monthly rent in the areas included within the limits of Municipal Corporation, the provisions of the Tenancy Act will not apply.71. In the case at hand, the monthly rent of the suit premises was Rs.40,000/and, therefore, the appellant was well within their right to file summary suit against theeviction and for recovery of the arrears of rent by taking recourse to the provisions ofct read with Rule 1(B) of The Rules applicable to the suits filed on the original side jurisdiction of the High Court at Calcutta.72. In the light of the foregoing discussion, we are of the view that the respondent failed to raise any arguable and substantial defense as required under Rule 6 read with Rule 9 of the Rules and the three grounds raised for seeking leave to defend the suit were only for the sake of raising and had no factual or/and legal foundation to stand for trial in the suit and hence no leave can be granted to the respondent on such grounds under Rule 9 of the Rules. It was, therefore, rightly declined by the Single Judge but wrongly granted by the Division Bench. | 1 | 4,800 | 1,528 | ### Instruction:
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deemed to have been waived. The following Para 6 of the decision is apposite which reads as under:“6. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under Section 106 of the TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the plaintiff as Ext. P-4.”60. Second, the respondent by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and 11.07.2006, sent to the appellant on the question of ownership of the suit premises and payment of rent had expressed their willingness to attorn and continue the tenancy with the appellant and also offered to pay rent to the appellant. (See pages 198 & 199 of the SLP Paper Book-order of the Single Judge)61. Third, the respondent in their civil suit (No.1183 of 2012) filed against the appellant in Paras 15, 17, 18 and relief clause (e) of the plaint admitted the ownership of the appellant over the suit premises and went to the extent of seeking the mandatory injunction against the appellant directing them to accept the monthly rent of the suit premises from the respondent.62. In other words, reading of the aforementioned paras in the respondent’s plaint including the relief clause (e) would go to show that the respondent was all along willing to accept and indeed actually accepted the ownership of the appellant over the suit premises and, therefore, sought mandatory injunction against the appellant to accept them as tenant. The conduct of the respondent, therefore, disentitles them to now raise a new plea questioning the title of the appellant over the suit premises and a plea of attornment. Both, in our opinion, are wholly misconceived pleas and, therefore, deserve to be rejected.63. As mentioned above, the title of the landlord over the tenanted premises in a suit for eviction cannot be examined like a title suit. Similarly, the attornment can be proved by several circumstances including taking into consideration the conduct of the tenant qua landlord.64. The aforesaid three circumstances, in our opinion, are, therefore, more than sufficient to record a finding that the appellant was prima facie able to prove their title over the suit premises so also was able to prove the factum of“attornment”made by the respondent in relation to the suit premises in appellant’s favour thereby entitling the appellant to determine the contractual tenancy which was devolved upon them by operation of law.65. In the light of the foregoing discussion, we are unable to agree with the view taken by the Division Bench that there was some dispute or confusion as to who is the owner of the suit premises. In our view, there was neither any dispute and nor confusion and nor any ambiguity over the question of title over the suit premises which needed any elaborate inquiry.66. This takes us to examine the next question as to what was the monthly rent of the suit premises – whether Rs.1600/- towards monthly rent and Rs.38,400/- towards maintenance charges as claimed by the respondent or Rs.40,000/- as claimed by the appellant.67. In our view, the monthly rent of the suit premises was Rs.40,000/-. It is for the reason that Firstly, the respondent had been paying Rs.40,000/- per month to their previous landlord – GEHA for a long time; Second, the bifurcation of Rs.40,000/- was being sought by the respondent so that they may get the benefit of applicability of the Tenancy Act to defend therein tenant’s right which they failed to prove and lastly, the rent receipts filed by the parties clearly proved that the monthly rent of the suit premises was Rs.40,000/- and not Rs.1600/-.68. This takes us to examine the next question as to whether the suit filed by the appellant invoking the provisions of the TP Act was maintainable or it should have been filed under the Tenancy Act.69. In our opinion, the appellant rightly filed the suit by invoking the provisions of the TP Act. It is for the reason that once the monthly rent of the suit premises was found to exceed the limit prescribed under Section 3(f) of the Tenancy Act, the provisions of the Tenancy Act had no application to the suit premises.70. Section 3(f) of the Tenancy Act says that any premises let out for non-residential purpose when carries more than Rs. 10,000/- as monthly rent in the areas included within the limits of Municipal Corporation, the provisions of the Tenancy Act will not apply.71. In the case at hand, the monthly rent of the suit premises was Rs.40,000/- and, therefore, the appellant was well within their right to file summary suit against the tenants eviction and for recovery of the arrears of rent by taking recourse to the provisions of the TP Act read with Rule 1(B) of The Rules applicable to the suits filed on the original side jurisdiction of the High Court at Calcutta.72. In the light of the foregoing discussion, we are of the view that the respondent failed to raise any arguable and substantial defense as required under Rule 6 read with Rule 9 of the Rules and the three grounds raised for seeking leave to defend the suit were only for the sake of raising and had no factual or/and legal foundation to stand for trial in the suit and hence no leave can be granted to the respondent on such grounds under Rule 9 of the Rules. It was, therefore, rightly declined by the Single Judge but wrongly granted by the Division Bench.
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issued by the Governor on 05.10.2005 under Section 3(2) ofof 1980, the suit premises then stood transferred and vested in the(see notification dated 05.10.2005) by operation of law and the appellant accordingly became the owner of the suit premises with effect from 05.10.2005.53. It is further not in dispute that the GEHA and their lawyer, vide letters dated 24.02.2006 and 28.04.2006, informed the respondent about the change of ownership of the suit premises and the appellant acquiring the ownership of the suit premises vide notification dated 05.10.2005.54. In our considered opinion, the aforementioned undisputed facts, which are matter of record, are sufficient to hold in the eviction suit that the appellant became the owner of the suit premises with effect from 05.10.2005.55. In our considered view, the respondent also attorned to the appellant and accepted the ownership of the appellant over the suit premises, which is prima facie proved by the three facts and circumstances as set out below.56. First, when the appellant sent a quit notice dated 17.05.2012 to the respondent under Section 106 ofct determining the tenancy and calling upon the respondent to pay the arrears of rent and vacate the suit premises, despite receipt of the quit notice, they did not reply to it.57. In our view, the respondent ought to have replied to the notice at the first available opportunity, which they failed to do so. It amounts to waiver on their part to challenge the invalidity or infirmity of the quit notice including the ownership issue raised therein.Second, the respondent by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and 11.07.2006, sent to the appellant on the question of ownership of the suit premises and payment of rent had expressed their willingness to attorn and continue the tenancy with the appellant and also offered to pay rent to the appellant. (See pages 198 & 199 of the SLP Paperof the Single Judge)61. Third, the respondent in their civil suit (No.1183 of 2012) filed against the appellant in Paras 15, 17, 18 and relief clause (e) of the plaint admitted the ownership of the appellant over the suit premises and went to the extent of seeking the mandatory injunction against the appellant directing them to accept the monthly rent of the suit premises from the respondent.62. In other words, reading of the aforementioned paras in theplaint including the relief clause (e) would go to show that the respondent was all along willing to accept and indeed actually accepted the ownership of the appellant over the suit premises and, therefore, sought mandatory injunction against the appellant to accept them as tenant. The conduct of the respondent, therefore, disentitles them to now raise a new plea questioning the title of the appellant over the suit premises and a plea of attornment. Both, in our opinion, are wholly misconceived pleas and, therefore, deserve to be rejected.63. As mentioned above, the title of the landlord over the tenanted premises in a suit for eviction cannot be examined like a title suit. Similarly, the attornment can be proved by several circumstances including taking into consideration the conduct of the tenant qua landlord.64. The aforesaid three circumstances, in our opinion, are, therefore, more than sufficient to record a finding that the appellant was prima facie able to prove their title over the suit premises so also was able to prove the factumby the respondent in relation to the suit premises infavour thereby entitling the appellant to determine the contractual tenancy which was devolved upon them by operation of law.65. In the light of the foregoing discussion, we are unable to agree with the view taken by the Division Bench that there was some dispute or confusion as to who is the owner of the suit premises. In our view, there was neither any dispute and nor confusion and nor any ambiguity over the question of title over the suit premises which needed any elaborate inquiry.In our view, the monthly rent of the suit premises was Rs.It is for the reason that Firstly, the respondent had been paying Rs.40,000/per month to their previous landlord – GEHA for a long time; Second, the bifurcation of Rs.40,000/was being sought by the respondent so that they may get the benefit of applicability of the Tenancy Act to defend thereinright which they failed to prove and lastly, the rent receipts filed by the parties clearly proved that the monthly rent of the suit premises was Rs.40,000/9. In our opinion, the appellant rightly filed the suit by invoking the provisions oft. It is for the reason that once the monthly rent of the suit premises was found to exceed the limit prescribed under Section 3(f) of the Tenancy Act, the provisions of the Tenancy Act had no application to the suit premises.70. Section 3(f) of the Tenancy Act says that any premises let out forpurpose when carries more than Rs. 10,000/as monthly rent in the areas included within the limits of Municipal Corporation, the provisions of the Tenancy Act will not apply.71. In the case at hand, the monthly rent of the suit premises was Rs.40,000/and, therefore, the appellant was well within their right to file summary suit against theeviction and for recovery of the arrears of rent by taking recourse to the provisions ofct read with Rule 1(B) of The Rules applicable to the suits filed on the original side jurisdiction of the High Court at Calcutta.72. In the light of the foregoing discussion, we are of the view that the respondent failed to raise any arguable and substantial defense as required under Rule 6 read with Rule 9 of the Rules and the three grounds raised for seeking leave to defend the suit were only for the sake of raising and had no factual or/and legal foundation to stand for trial in the suit and hence no leave can be granted to the respondent on such grounds under Rule 9 of the Rules. It was, therefore, rightly declined by the Single Judge but wrongly granted by the Division Bench.
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Chairman and Managing Director, Singareni Collieries Company Limited Vs. M. Ramesh Chander and Others | of the common pool are thrown open both for internal and external candidates. Thus on account of this procedure, the internal candidates stand a chance of getting a larger share in the appointment to the said posts exceeding even their quota. Hence the grievance made by and on behalf of the internal candidates is unjustified. In any case, the internal candidates cannot approach the court for direction to the Company to follow a different procedure so long as their quota is not reduced and they are not denied the opportunity to compete for the posts reserved for the external candidates. The appellant-Company also pointed out that the grievance of the respondents with regard to the method of selecting the internal and external candidates is devoid of merit. As per the procedure followed by the appellant-Company, the internal candidates, as pointed out above, are first drawn out and the balance of 66 2/3 per cent is left open for both the external and internal candidates. The respondents have been taking conflicting stands in this regard. Before the High Court their stand was that 66 2/3 per cent of the posts meant for external candidates should be filled up first both from internal and external candidates on the basis of the merit. In the pleadings before this Court, they have raised the contention that it is 33 1/3 per cent posts meant for internal candidates which should be filled up first. It is, therefore, contended on behalf of the appellant-Company that the respondents do not know what exactly they want. It is also pointed out by the Company that they are duty-bound to follow the rule of reservation both while selecting the internal candidates from their quota and while selecting the candidates from the direct recruitment quota. The High Court has not fully appreciated the procedure followed by the Company and its advantage to the internal candidates. The decision of the High Court is, therefore, erroneous. The contention of the respondents further that there are to rules and regulations for recruitment to the post of Welfare Officer is not correct. According to the earlier policy decision of the Board of the Company, the recruitment was made to the said posts on the basis of 1 : 1 ratio between internal and external candidates. Thereafter, to have a uniformity and to follow the scheme accepted by Coal India Ltd. the quota of the internal candidates was reduced to 33 1/3 per cent again by a policy decision of the Board 6. It is not necessary to separately mention the contentions of the respondents since they are already referred to while reproducing the contentions of the appellant-Company. it is clear from the respective contentions that the respondents desire two things, viz., that there should be no reservation either while selecting the internal or external candidates in their respective quota, and that the external candidates should be selected before the internal candidates are selected. As regards the second contention of the respondents, the Company is right in its submission that the respondents have taken contradictory stands in that behalf before this Court and the High Court. Suffice it to point out that in fact the procedure followed by the Company, viz., of first selecting the internal candidates for their quota of 33 1/3 per cent from the common merit list and thereafter selecting the external candidates, works out to the advantage of the internal candidates since after securing the quota which is already reserved for them, they also stand a chance to get more posts in the quota meant for the external candidates for which they are allowed to compete. We are, therefore, unable to understand the contention raised by and on behalf of the internal candidates in that behalf. It must be understood that when the internal candidates are selected in their quota, they are so selected from among the competing internal candidates in the common merit list. This means that the internal candidates up to their quota are first selected even if they secure less marks than the external candidates in the common merit list. It is thereafter that the selection of the external candidates is undertaken. Unless two separate tests are held, one for the internal candidates and another for the external candidates, the present procedure followed for selecting internal and external candidates after holding a common test cannot be complained against at least by the internal candidates which, as pointed out earlier, in effect works to their advantage 7. The internal candidates are today contending for the selection of the external candidates first as that may give them some additional advantage because of the results of the present test. The method of selection cannot vary according to the results of the tests held to confer additional benefits on the internal candidates. Yet that will be the consequence of accepting the said contention 8. As regards reservations, the Company is bound to follow the rule of reservation both while selecting the internal and the external candidates. As the law stands today, no exception can be taken to it since it is obligatory on the appellant-Company to abide by the law 9. As it is, we are afraid that the present method of reserving a quota for the internal candidates in the direct recruitment may not be constitutionally valid. All the said posts are, as the rules stand today, to be filled up by direct recruitment. That is why one common test is held for all the competing candidates, viz., the internal and external candidates. After holding a common test for direct recruitment, no quota can be created in the common pool for candidates other than those covered by Article 16(4) of the Constitution. All candidates for direct recruitment have to compete with each other whether they are internal or external candidates. However, in the present case, we are not called upon to pronounce upon the validity of the said rule followed by the appellant-Company since no such challenge is raised before us | 1[ds]The High Court has not fully appreciated the procedure followed by the Company and its advantage to the internal candidates. The decision of the High Court is, therefore, erroneous. The contention of the respondents further that there are to rules and regulations for recruitment to the post of Welfare Officer is not correct. According to the earlier policy decision of the Board of the Company, the recruitment was made to the said posts on the basis of 1 : 1 ratio between internal and external candidates. Thereafter, to have a uniformity and to follow the scheme accepted by Coal India Ltd. the quota of the internal candidates was reduced to 33 1/3 per cent again by a policy decision of the Boardit is clear from the respective contentions that the respondents desire two things, viz., that there should be no reservation either while selecting the internal or external candidates in their respective quota, and that the external candidates should be selected before the internal candidates are selected. As regards the second contention of the respondents, the Company is right in its submission that the respondents have taken contradictory stands in that behalf before this Court and the High Court. Suffice it to point out that in fact the procedure followed by the Company, viz., of first selecting the internal candidates for their quota of 33 1/3 per cent from the common merit list and thereafter selecting the external candidates, works out to the advantage of the internal candidates since after securing the quota which is already reserved for them, they also stand a chance to get more posts in the quota meant for the external candidates for which they are allowed to compete. We are, therefore, unable to understand the contention raised by and on behalf of the internal candidates in that behalf. It must be understood that when the internal candidates are selected in their quota, they are so selected from among the competing internal candidates in the common merit list. This means that the internal candidates up to their quota are first selected even if they secure less marks than the external candidates in the common merit list. It is thereafter that the selection of the external candidates is undertaken. Unless two separate tests are held, one for the internal candidates and another for the external candidates, the present procedure followed for selecting internal and external candidates after holding a common test cannot be complained against at least by the internal candidates which, as pointed out earlier, in effect works to their advantage7. The internal candidates are today contending for the selection of the external candidates first as that may give them some additional advantage because of the results of the present test. The method of selection cannot vary according to the results of the tests held to confer additional benefits on the internal candidates. Yet that will be the consequence of accepting the said contention8. As regards reservations, the Company is bound to follow the rule of reservation both while selecting the internal and the external candidates. As the law stands today, no exception can be taken to it since it is obligatory on they to abide by the law9. As it is, we are afraid that the present method of reserving a quota for the internal candidates in the direct recruitment may not be constitutionally valid. All the said posts are, as the rules stand today, to be filled up by direct recruitment. That is why one common test is held for all the competing candidates, viz., the internal and external candidates. After holding a common test for direct recruitment, no quota can be created in the common pool for candidates other than those covered by Article 16(4) of the Constitution. All candidates for direct recruitment have to compete with each other whether they are internal or external candidates. However, in the present case, we are not called upon to pronounce upon the validity of the said rule followed by they since no such challenge is raised before us | 1 | 1,944 | 733 | ### 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:
of the common pool are thrown open both for internal and external candidates. Thus on account of this procedure, the internal candidates stand a chance of getting a larger share in the appointment to the said posts exceeding even their quota. Hence the grievance made by and on behalf of the internal candidates is unjustified. In any case, the internal candidates cannot approach the court for direction to the Company to follow a different procedure so long as their quota is not reduced and they are not denied the opportunity to compete for the posts reserved for the external candidates. The appellant-Company also pointed out that the grievance of the respondents with regard to the method of selecting the internal and external candidates is devoid of merit. As per the procedure followed by the appellant-Company, the internal candidates, as pointed out above, are first drawn out and the balance of 66 2/3 per cent is left open for both the external and internal candidates. The respondents have been taking conflicting stands in this regard. Before the High Court their stand was that 66 2/3 per cent of the posts meant for external candidates should be filled up first both from internal and external candidates on the basis of the merit. In the pleadings before this Court, they have raised the contention that it is 33 1/3 per cent posts meant for internal candidates which should be filled up first. It is, therefore, contended on behalf of the appellant-Company that the respondents do not know what exactly they want. It is also pointed out by the Company that they are duty-bound to follow the rule of reservation both while selecting the internal candidates from their quota and while selecting the candidates from the direct recruitment quota. The High Court has not fully appreciated the procedure followed by the Company and its advantage to the internal candidates. The decision of the High Court is, therefore, erroneous. The contention of the respondents further that there are to rules and regulations for recruitment to the post of Welfare Officer is not correct. According to the earlier policy decision of the Board of the Company, the recruitment was made to the said posts on the basis of 1 : 1 ratio between internal and external candidates. Thereafter, to have a uniformity and to follow the scheme accepted by Coal India Ltd. the quota of the internal candidates was reduced to 33 1/3 per cent again by a policy decision of the Board 6. It is not necessary to separately mention the contentions of the respondents since they are already referred to while reproducing the contentions of the appellant-Company. it is clear from the respective contentions that the respondents desire two things, viz., that there should be no reservation either while selecting the internal or external candidates in their respective quota, and that the external candidates should be selected before the internal candidates are selected. As regards the second contention of the respondents, the Company is right in its submission that the respondents have taken contradictory stands in that behalf before this Court and the High Court. Suffice it to point out that in fact the procedure followed by the Company, viz., of first selecting the internal candidates for their quota of 33 1/3 per cent from the common merit list and thereafter selecting the external candidates, works out to the advantage of the internal candidates since after securing the quota which is already reserved for them, they also stand a chance to get more posts in the quota meant for the external candidates for which they are allowed to compete. We are, therefore, unable to understand the contention raised by and on behalf of the internal candidates in that behalf. It must be understood that when the internal candidates are selected in their quota, they are so selected from among the competing internal candidates in the common merit list. This means that the internal candidates up to their quota are first selected even if they secure less marks than the external candidates in the common merit list. It is thereafter that the selection of the external candidates is undertaken. Unless two separate tests are held, one for the internal candidates and another for the external candidates, the present procedure followed for selecting internal and external candidates after holding a common test cannot be complained against at least by the internal candidates which, as pointed out earlier, in effect works to their advantage 7. The internal candidates are today contending for the selection of the external candidates first as that may give them some additional advantage because of the results of the present test. The method of selection cannot vary according to the results of the tests held to confer additional benefits on the internal candidates. Yet that will be the consequence of accepting the said contention 8. As regards reservations, the Company is bound to follow the rule of reservation both while selecting the internal and the external candidates. As the law stands today, no exception can be taken to it since it is obligatory on the appellant-Company to abide by the law 9. As it is, we are afraid that the present method of reserving a quota for the internal candidates in the direct recruitment may not be constitutionally valid. All the said posts are, as the rules stand today, to be filled up by direct recruitment. That is why one common test is held for all the competing candidates, viz., the internal and external candidates. After holding a common test for direct recruitment, no quota can be created in the common pool for candidates other than those covered by Article 16(4) of the Constitution. All candidates for direct recruitment have to compete with each other whether they are internal or external candidates. However, in the present case, we are not called upon to pronounce upon the validity of the said rule followed by the appellant-Company since no such challenge is raised before us
### Response:
1
### Explanation:
The High Court has not fully appreciated the procedure followed by the Company and its advantage to the internal candidates. The decision of the High Court is, therefore, erroneous. The contention of the respondents further that there are to rules and regulations for recruitment to the post of Welfare Officer is not correct. According to the earlier policy decision of the Board of the Company, the recruitment was made to the said posts on the basis of 1 : 1 ratio between internal and external candidates. Thereafter, to have a uniformity and to follow the scheme accepted by Coal India Ltd. the quota of the internal candidates was reduced to 33 1/3 per cent again by a policy decision of the Boardit is clear from the respective contentions that the respondents desire two things, viz., that there should be no reservation either while selecting the internal or external candidates in their respective quota, and that the external candidates should be selected before the internal candidates are selected. As regards the second contention of the respondents, the Company is right in its submission that the respondents have taken contradictory stands in that behalf before this Court and the High Court. Suffice it to point out that in fact the procedure followed by the Company, viz., of first selecting the internal candidates for their quota of 33 1/3 per cent from the common merit list and thereafter selecting the external candidates, works out to the advantage of the internal candidates since after securing the quota which is already reserved for them, they also stand a chance to get more posts in the quota meant for the external candidates for which they are allowed to compete. We are, therefore, unable to understand the contention raised by and on behalf of the internal candidates in that behalf. It must be understood that when the internal candidates are selected in their quota, they are so selected from among the competing internal candidates in the common merit list. This means that the internal candidates up to their quota are first selected even if they secure less marks than the external candidates in the common merit list. It is thereafter that the selection of the external candidates is undertaken. Unless two separate tests are held, one for the internal candidates and another for the external candidates, the present procedure followed for selecting internal and external candidates after holding a common test cannot be complained against at least by the internal candidates which, as pointed out earlier, in effect works to their advantage7. The internal candidates are today contending for the selection of the external candidates first as that may give them some additional advantage because of the results of the present test. The method of selection cannot vary according to the results of the tests held to confer additional benefits on the internal candidates. Yet that will be the consequence of accepting the said contention8. As regards reservations, the Company is bound to follow the rule of reservation both while selecting the internal and the external candidates. As the law stands today, no exception can be taken to it since it is obligatory on they to abide by the law9. As it is, we are afraid that the present method of reserving a quota for the internal candidates in the direct recruitment may not be constitutionally valid. All the said posts are, as the rules stand today, to be filled up by direct recruitment. That is why one common test is held for all the competing candidates, viz., the internal and external candidates. After holding a common test for direct recruitment, no quota can be created in the common pool for candidates other than those covered by Article 16(4) of the Constitution. All candidates for direct recruitment have to compete with each other whether they are internal or external candidates. However, in the present case, we are not called upon to pronounce upon the validity of the said rule followed by they since no such challenge is raised before us
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B.N. Srivastava Vs. Cbi, Eou-Iv, New Delhi | S. Abdul Nazeer, J.1. Leave granted.2. The application filed by the appellant was allowed by the Special Judge, Prevention of Corruption, C.B.I., Ghaziabad, in Special Case No.05 of 2012, dated 28th April, 2016, subject to the following conditions:"1. The applicant/accused will not tamper with the evidence during the trial.2. The applicant/accused will not pressurize/intimidate the prosecution witness.3. The applicant/accused will personally appear before this trial court on the date fixed.4. The applicant/accused will surrender/deposit his passport in the court.Accused/applicant Brijesh Narayan Srivastava (B.N. Srivastava) will furnish two personal bonds of L 50,000/- with two bail sureties each in the like amount to the satisfaction of the court.Since the allegations against the accused are too serious, causing heavy financial losses to the government, therefore, the accused will deposit L 50 lakh in the court within four weeks from the date of his release on bail."3. The appellant challenged the condition imposed in the order for depositing Rupees fifty lakh as precondition while granting bail before the High Court of Judicature at Allahabad in Crl.M.A.No.16764 of 2016. In the said case an interim order was passed on 31st May, 2016 staying the imposition of condition of the deposit of Rupees fifty lakh subject to the appellant depositing Rupees ten lakh within one month from the date of the order. Accordingly, the appellant has deposited a sum of Rupees ten lakh. The High Court by its order dated 11th November, 2016 has dismissed the application filed by the appellant challenging the aforesaid order.4. We have heard learned counsel for the parties.5. It is clear that the appellant has already deposited a sum of Rupees ten lakh in terms of an interim order passed by the High Court. It is also clear from the materials on record that the co-accused, namely, B.N. Yadav and R.K. Singh have been granted bail without a condition being imposed upon them for depositing the amount. The appellant has been in custody for more than four years. In the facts and circumstances of the case, we are of the view that the Special Court was justified in granting the bail to the appellant. | 1[ds]5. It is clear that the appellant has already deposited a sum of Rupees ten lakh in terms of an interim order passed by the High Court. It is also clear from the materials on record that thenamely, B.N. Yadav and R.K. Singh have been granted bail without a condition being imposed upon them for depositing the amount. The appellant has been in custody for more than four years. In the facts and circumstances of the case, we are of the view that the Special Court was justified in granting the bail to the appellant. | 1 | 396 | 107 | ### 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. Abdul Nazeer, J.1. Leave granted.2. The application filed by the appellant was allowed by the Special Judge, Prevention of Corruption, C.B.I., Ghaziabad, in Special Case No.05 of 2012, dated 28th April, 2016, subject to the following conditions:"1. The applicant/accused will not tamper with the evidence during the trial.2. The applicant/accused will not pressurize/intimidate the prosecution witness.3. The applicant/accused will personally appear before this trial court on the date fixed.4. The applicant/accused will surrender/deposit his passport in the court.Accused/applicant Brijesh Narayan Srivastava (B.N. Srivastava) will furnish two personal bonds of L 50,000/- with two bail sureties each in the like amount to the satisfaction of the court.Since the allegations against the accused are too serious, causing heavy financial losses to the government, therefore, the accused will deposit L 50 lakh in the court within four weeks from the date of his release on bail."3. The appellant challenged the condition imposed in the order for depositing Rupees fifty lakh as precondition while granting bail before the High Court of Judicature at Allahabad in Crl.M.A.No.16764 of 2016. In the said case an interim order was passed on 31st May, 2016 staying the imposition of condition of the deposit of Rupees fifty lakh subject to the appellant depositing Rupees ten lakh within one month from the date of the order. Accordingly, the appellant has deposited a sum of Rupees ten lakh. The High Court by its order dated 11th November, 2016 has dismissed the application filed by the appellant challenging the aforesaid order.4. We have heard learned counsel for the parties.5. It is clear that the appellant has already deposited a sum of Rupees ten lakh in terms of an interim order passed by the High Court. It is also clear from the materials on record that the co-accused, namely, B.N. Yadav and R.K. Singh have been granted bail without a condition being imposed upon them for depositing the amount. The appellant has been in custody for more than four years. In the facts and circumstances of the case, we are of the view that the Special Court was justified in granting the bail to the appellant.
### Response:
1
### Explanation:
5. It is clear that the appellant has already deposited a sum of Rupees ten lakh in terms of an interim order passed by the High Court. It is also clear from the materials on record that thenamely, B.N. Yadav and R.K. Singh have been granted bail without a condition being imposed upon them for depositing the amount. The appellant has been in custody for more than four years. In the facts and circumstances of the case, we are of the view that the Special Court was justified in granting the bail to the appellant.
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Central Bureau of Investigation, Bank Securities & Fraud Cell & Another Vs. Ramesh Gelli & Others | interpretation under Section 2 ( c ) thereof, read with the provisions of the Rajasthan Municipalities Act.xxx xxx xxx19.The present Act (the 1988 Act) envisages widening of the scope of the definition of the expression "public servant". It was brought in force to purify public administration. The legislature has used a comprehensive definition of "public servant" to achieve the purpose of punishing and curbing corruption among public servants. Hence, it would be inappropriate to limit the contents of the definition clause by a construction which would be against the spirit of the statute. Bearing in mind this principle, when we consider the case of the appellant, we have no doubt that he is a public servant within the meaning of Section 2(c) of the Act. Clause (viii) of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorised or required to perform any public duty, to be a public servant. The word "office" is of indefinite connotation and, in the present context, it would mean a position or place to which certain duties are attached and has an existence which is independent of the persons who fill it. Councillors and Members of the Board are positions which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it. They perform various duties which are in the field of public duty. From the conspectus of what we have observed above, it is evident that appellant is a public servant within Section 2(c)(viii) of the Prevention of Corruption Act, 1988." (Emphasis supplied) 23. At the end it is relevant to mention that in the case of Govt. of A.P. and others v. Venku Reddy (supra), in which while interpreting word `public servant this court has made following observations: "12. In construing the definition of "public servant" in clause (c) of Section 2 of the 1988 Act, the court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of "public servant", was brought in force to purify public administration. When the legislature has used such a comprehensive definition of "public servant" to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of "public servant", therefore, deserves a wide construction. (See State of M.P. v. Shri Ram Singh (2000) 5 SCC 88 )" 24. In the light of law laid down by this court as above, it is clear that object of enactment of P.C. Act, 1988, was to make the anti corruption law more effective and widen its coverage. In view of definition of public servant in Section 46A of Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank Of India, were already public servants, as such they cannot be excluded from definition of `public servant. We are of the view that over the general definition of `public servant given in Section 21 of IPC, it is the definition of `public servant given in the P.C. Act, 1988, read with Section 46-A of Banking Regulation Act, which holds the field for the purposes of offences under the said Act. For banking business what cannot be forgotten is Section 46A of Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165A of IPC have been repealed by the P.C. Act, 1988, relevance of Section 46A of Banking Regulation Act, 1949, is not lost.25. Be it noted that when Prevention of Corruption Act, 1988 came into force, Section 46 of Banking Regulation Act, 1949 was already in place, and since the scope of P.C. Act, 1988 was to widen the definition of "public servant". As such, merely for the reason that in 1994, while clarifying the word "chairman", legislature did not substitute words "for the purposes of Prevention of Corruption Act, 1988" for the expression "for the purposes of Chapter IX of the Indian Penal Code (45 of 1860)" in Section 46A of Banking Regulation Act, 1949, it cannot be said, that the legislature had intention to make Section 46A inapplicable for the purposes of P.C. Act, 1988, by which Sections 161 to 165A of IPC were omitted, and the offences stood replaced by Sections 7 to 13 of P.C. Act, 1988.26. A law which is not shown ultravires must be given proper meaning. Section 46-A of Banking Regulation Act, 1949, cannot be left meaningless and requires harmonious construction. As such in our opinion, the Special Judge (CBI) has erred in not taking cognizance of offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988. However, we may make it clear that in the present case the accused cannot be said to be public servant within the meaning of Section 21 IPC, as such offence under Section 409 IPC may not get attracted, we leave it open for the trial court to take cognizance of other offences punishable under Indian Penal Code, if the same get attracted.27. Therefore, having considered the submissions made before us, and after going through the papers on record, and further keeping in mind the Statement of Objects and Reasons of the Bill relating to Prevention of Corruption Act, 1988 read with Section 46A of Banking Regulation Act, 1949, we are of the opinion that the courts below have erred in law in holding that accused Ramesh Gelli and Sridhar Subasri, who were Chairman/Managing Director and Executive Director of GTB respectively, were not public servants for the purposes of Prevention of Corruption Act, 1988. | 1[ds]24. In the light of law laid down by this court as above, it is clear that object of enactment of P.C. Act, 1988, was to make the anti corruption law more effective and widen its coverage. In view of definition of public servant in Section 46A of Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank Of India, were already public servants, as such they cannot be excluded from definition of `public servant. We are of the view that over the general definition of `public servant given in Section 21 of IPC, it is the definition of `public servant given in the P.C. Act, 1988, read with Section 46-A of Banking Regulation Act, which holds the field for the purposes of offences under the said Act. For banking business what cannot be forgotten is Section 46A of Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165A of IPC have been repealed by the P.C. Act, 1988, relevance of Section 46A of Banking Regulation Act, 1949, is not lost.25. Be it noted that when Prevention of Corruption Act, 1988 came into force, Section 46 of Banking Regulation Act, 1949 was already in place, and since the scope of P.C. Act, 1988 was to widen the definition of "public servant". As such, merely for the reason that in 1994, while clarifying the word "chairman", legislature did not substitute words "for the purposes of Prevention of Corruption Act, 1988" for the expression "for the purposes of Chapter IX of the Indian Penal Code (45 of 1860)" in Section 46A of Banking Regulation Act, 1949, it cannot be said, that the legislature had intention to make Section 46A inapplicable for the purposes of P.C. Act, 1988, by which Sections 161 to 165A of IPC were omitted, and the offences stood replaced by Sections 7 to 13 of P.C. Act, 1988.26. A law which is not shown ultravires must be given proper meaning. Section 46-A of Banking Regulation Act, 1949, cannot be left meaningless and requires harmonious construction. As such in our opinion, the Special Judge (CBI) has erred in not taking cognizance of offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988. However, we may make it clear that in the present case the accused cannot be said to be public servant within the meaning of Section 21 IPC, as such offence under Section 409 IPC may not get attracted, we leave it open for the trial court to take cognizance of other offences punishable under Indian Penal Code, if the same get attracted.27. Therefore, having considered the submissions made before us, and after going through the papers on record, and further keeping in mind the Statement of Objects and Reasons of the Bill relating to Prevention of Corruption Act, 1988 read with Section 46A of Banking Regulation Act, 1949, we are of the opinion that the courts below have erred in law in holding that accused Ramesh Gelli and Sridhar Subasri, who were Chairman/Managing Director and Executive Director of GTB respectively, were not public servants for the purposes of Prevention of Corruption Act, 1988. | 1 | 8,885 | 635 | ### 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:
interpretation under Section 2 ( c ) thereof, read with the provisions of the Rajasthan Municipalities Act.xxx xxx xxx19.The present Act (the 1988 Act) envisages widening of the scope of the definition of the expression "public servant". It was brought in force to purify public administration. The legislature has used a comprehensive definition of "public servant" to achieve the purpose of punishing and curbing corruption among public servants. Hence, it would be inappropriate to limit the contents of the definition clause by a construction which would be against the spirit of the statute. Bearing in mind this principle, when we consider the case of the appellant, we have no doubt that he is a public servant within the meaning of Section 2(c) of the Act. Clause (viii) of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorised or required to perform any public duty, to be a public servant. The word "office" is of indefinite connotation and, in the present context, it would mean a position or place to which certain duties are attached and has an existence which is independent of the persons who fill it. Councillors and Members of the Board are positions which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it. They perform various duties which are in the field of public duty. From the conspectus of what we have observed above, it is evident that appellant is a public servant within Section 2(c)(viii) of the Prevention of Corruption Act, 1988." (Emphasis supplied) 23. At the end it is relevant to mention that in the case of Govt. of A.P. and others v. Venku Reddy (supra), in which while interpreting word `public servant this court has made following observations: "12. In construing the definition of "public servant" in clause (c) of Section 2 of the 1988 Act, the court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of "public servant", was brought in force to purify public administration. When the legislature has used such a comprehensive definition of "public servant" to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of "public servant", therefore, deserves a wide construction. (See State of M.P. v. Shri Ram Singh (2000) 5 SCC 88 )" 24. In the light of law laid down by this court as above, it is clear that object of enactment of P.C. Act, 1988, was to make the anti corruption law more effective and widen its coverage. In view of definition of public servant in Section 46A of Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank Of India, were already public servants, as such they cannot be excluded from definition of `public servant. We are of the view that over the general definition of `public servant given in Section 21 of IPC, it is the definition of `public servant given in the P.C. Act, 1988, read with Section 46-A of Banking Regulation Act, which holds the field for the purposes of offences under the said Act. For banking business what cannot be forgotten is Section 46A of Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165A of IPC have been repealed by the P.C. Act, 1988, relevance of Section 46A of Banking Regulation Act, 1949, is not lost.25. Be it noted that when Prevention of Corruption Act, 1988 came into force, Section 46 of Banking Regulation Act, 1949 was already in place, and since the scope of P.C. Act, 1988 was to widen the definition of "public servant". As such, merely for the reason that in 1994, while clarifying the word "chairman", legislature did not substitute words "for the purposes of Prevention of Corruption Act, 1988" for the expression "for the purposes of Chapter IX of the Indian Penal Code (45 of 1860)" in Section 46A of Banking Regulation Act, 1949, it cannot be said, that the legislature had intention to make Section 46A inapplicable for the purposes of P.C. Act, 1988, by which Sections 161 to 165A of IPC were omitted, and the offences stood replaced by Sections 7 to 13 of P.C. Act, 1988.26. A law which is not shown ultravires must be given proper meaning. Section 46-A of Banking Regulation Act, 1949, cannot be left meaningless and requires harmonious construction. As such in our opinion, the Special Judge (CBI) has erred in not taking cognizance of offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988. However, we may make it clear that in the present case the accused cannot be said to be public servant within the meaning of Section 21 IPC, as such offence under Section 409 IPC may not get attracted, we leave it open for the trial court to take cognizance of other offences punishable under Indian Penal Code, if the same get attracted.27. Therefore, having considered the submissions made before us, and after going through the papers on record, and further keeping in mind the Statement of Objects and Reasons of the Bill relating to Prevention of Corruption Act, 1988 read with Section 46A of Banking Regulation Act, 1949, we are of the opinion that the courts below have erred in law in holding that accused Ramesh Gelli and Sridhar Subasri, who were Chairman/Managing Director and Executive Director of GTB respectively, were not public servants for the purposes of Prevention of Corruption Act, 1988.
### Response:
1
### Explanation:
24. In the light of law laid down by this court as above, it is clear that object of enactment of P.C. Act, 1988, was to make the anti corruption law more effective and widen its coverage. In view of definition of public servant in Section 46A of Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank Of India, were already public servants, as such they cannot be excluded from definition of `public servant. We are of the view that over the general definition of `public servant given in Section 21 of IPC, it is the definition of `public servant given in the P.C. Act, 1988, read with Section 46-A of Banking Regulation Act, which holds the field for the purposes of offences under the said Act. For banking business what cannot be forgotten is Section 46A of Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165A of IPC have been repealed by the P.C. Act, 1988, relevance of Section 46A of Banking Regulation Act, 1949, is not lost.25. Be it noted that when Prevention of Corruption Act, 1988 came into force, Section 46 of Banking Regulation Act, 1949 was already in place, and since the scope of P.C. Act, 1988 was to widen the definition of "public servant". As such, merely for the reason that in 1994, while clarifying the word "chairman", legislature did not substitute words "for the purposes of Prevention of Corruption Act, 1988" for the expression "for the purposes of Chapter IX of the Indian Penal Code (45 of 1860)" in Section 46A of Banking Regulation Act, 1949, it cannot be said, that the legislature had intention to make Section 46A inapplicable for the purposes of P.C. Act, 1988, by which Sections 161 to 165A of IPC were omitted, and the offences stood replaced by Sections 7 to 13 of P.C. Act, 1988.26. A law which is not shown ultravires must be given proper meaning. Section 46-A of Banking Regulation Act, 1949, cannot be left meaningless and requires harmonious construction. As such in our opinion, the Special Judge (CBI) has erred in not taking cognizance of offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988. However, we may make it clear that in the present case the accused cannot be said to be public servant within the meaning of Section 21 IPC, as such offence under Section 409 IPC may not get attracted, we leave it open for the trial court to take cognizance of other offences punishable under Indian Penal Code, if the same get attracted.27. Therefore, having considered the submissions made before us, and after going through the papers on record, and further keeping in mind the Statement of Objects and Reasons of the Bill relating to Prevention of Corruption Act, 1988 read with Section 46A of Banking Regulation Act, 1949, we are of the opinion that the courts below have erred in law in holding that accused Ramesh Gelli and Sridhar Subasri, who were Chairman/Managing Director and Executive Director of GTB respectively, were not public servants for the purposes of Prevention of Corruption Act, 1988.
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RAM LAL Vs. SALIG RAM | of the view that the impugned judgment, on its final conclusion for dismissal of the suit cannot be sustained and the entire matter deserves to be remanded to the Trial Court for consideration afresh. 13. As noticed, in essence, the case of the plaintiffs has been that the defendants were interfering with, and encroaching over, a part of their land comprised in Khasra No. 146. The Trial Court dismissed the suit but the First Appellate Court, at the initial stage, found it just and proper that further issues be determined on the question/s as to whether the defendants had encroached over the suit land and, if so, the extent and the manner thereof. The Trial Court was further directed to appoint a Commissioner and to hear the parties on objections, if any, and then to return the findings on additionally framed issue Nos. 2-A and 2-B. The Trial Court did appoint a Commissioner who carried out demarcation; the objections to his report were rejected; and thereafter, the Trial Court returned the findings in favour of the plaintiffs. 14. After receiving findings from the Trial Court, the First Appellate Court decided the appeal by its detailed judgment dated 06.06.1995. The First Appellate Court referred not only to the Commissioners report but also to the oral and documentary evidence adduced by the parties. The First Appellate Court also observed that the Commissioner had made an exhaustive report after carrying out demarcation properly and there was nothing on record to show that the report could not be accepted. The First Appellate Court, though dealt with the matter in sufficient detail but appear to have not taken into consideration the method and procedure for carrying out such demarcation, as delineated by the High Court of Himachal Pradesh in the case of Laxmi Nand (supra) with reference to the applicable instructions and guidelines, as issued by the Financial Commissioner under Section 100 of the Punjab Land Revenue Act, 1887, corresponding to Section 106 of the Himachal Pradesh Land Revenue Act, 1953 (Himachal Pradesh Act No. 6 of 1954). 15. It appears from the observations made by the High Court in the present case that the Local Commissioner omitted to scrupulously follow the applicable instructions for carrying out such demarcation and particularly omitted to fix three reference points on different sides of the land in question. However, the report made by the Local Commissioner was accepted by the Trial Court as also by the First Appellate Court. The question is: If the Local Commissioners report was suffering from want of compliance of the applicable instructions, what course was to be adopted by the High Court? 16. An appropriate answer to the question aforesaid is not far to seek. In the course of a civil suit, by way of incidental proceedings, the Court could issue a Commission, inter alia, for making local investigation, as per Section 75 of the Code of Civil Procedure (the Code hereafter). The procedure in relation to such Commission for local investigation is specified in Rules 9 and 10 of Order XXVI of the Code. Suffice it to notice for the present purpose that, as per clause (3) of Rule 10 of Order XXVI, where the Court is disssatisfied with the proceedings of such a Local Commissioner, it could direct such further inquiry to be made as considered fit. This clause (3) of Rule 10 of Order XXVI of the Code reads as under:- Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. 17. The fact that the Local Commissioners report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioners report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioners report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioners report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioners report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record. 18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any. | 1[ds]12. Having given anxious consideration to the rival submissions, we are clearly of the view that the impugned judgment, on its final conclusion for dismissal of the suit cannot be sustained and the entire matter deserves to be remanded to the Trial Court for consideration afresh13. As noticed, in essence, the case of the plaintiffs has been that the defendants were interfering with, and encroaching over, a part of their land comprised in Khasra No. 146. The Trial Court dismissed the suit but the First Appellate Court, at the initial stage, found it just and proper that further issues be determined on the question/s as to whether the defendants had encroached over the suit land and, if so, the extent and the manner thereof. The Trial Court was further directed to appoint a Commissioner and to hear the parties on objections, if any, and then to return the findings on additionally framed issue Nos. 2-A and 2-B. The Trial Court did appoint a Commissioner who carried out demarcation; the objections to his report were rejected; and thereafter, the Trial Court returned the findings in favour of the plaintiffs14. After receiving findings from the Trial Court, the First Appellate Court decided the appeal by its detailed judgment dated 06.06.1995. The First Appellate Court referred not only to the Commissioners report but also to the oral and documentary evidence adduced by the parties. The First Appellate Court also observed that the Commissioner had made an exhaustive report after carrying out demarcation properly and there was nothing on record to show that the report could not be accepted. The First Appellate Court, though dealt with the matter in sufficient detail but appear to have not taken into consideration the method and procedure for carrying out such demarcation, as delineated by the High Court of Himachal Pradesh in the case of Laxmi Nand (supra) with reference to the applicable instructions and guidelines, as issued by the Financial Commissioner under Section 100 of the Punjab Land Revenue Act, 1887, corresponding to Section 106 of the Himachal Pradesh Land Revenue Act, 1953 (Himachal Pradesh Act No. 6 of 1954)15. It appears from the observations made by the High Court in the present case that the Local Commissioner omitted to scrupulously follow the applicable instructions for carrying out such demarcation and particularly omitted to fix three reference points on different sides of the land in question. However, the report made by the Local Commissioner was accepted by the Trial Court as also by the First Appellate Court.17. The fact that the Local Commissioners report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioners report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioners report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioners report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioners report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any. | 1 | 2,983 | 895 | ### 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:
of the view that the impugned judgment, on its final conclusion for dismissal of the suit cannot be sustained and the entire matter deserves to be remanded to the Trial Court for consideration afresh. 13. As noticed, in essence, the case of the plaintiffs has been that the defendants were interfering with, and encroaching over, a part of their land comprised in Khasra No. 146. The Trial Court dismissed the suit but the First Appellate Court, at the initial stage, found it just and proper that further issues be determined on the question/s as to whether the defendants had encroached over the suit land and, if so, the extent and the manner thereof. The Trial Court was further directed to appoint a Commissioner and to hear the parties on objections, if any, and then to return the findings on additionally framed issue Nos. 2-A and 2-B. The Trial Court did appoint a Commissioner who carried out demarcation; the objections to his report were rejected; and thereafter, the Trial Court returned the findings in favour of the plaintiffs. 14. After receiving findings from the Trial Court, the First Appellate Court decided the appeal by its detailed judgment dated 06.06.1995. The First Appellate Court referred not only to the Commissioners report but also to the oral and documentary evidence adduced by the parties. The First Appellate Court also observed that the Commissioner had made an exhaustive report after carrying out demarcation properly and there was nothing on record to show that the report could not be accepted. The First Appellate Court, though dealt with the matter in sufficient detail but appear to have not taken into consideration the method and procedure for carrying out such demarcation, as delineated by the High Court of Himachal Pradesh in the case of Laxmi Nand (supra) with reference to the applicable instructions and guidelines, as issued by the Financial Commissioner under Section 100 of the Punjab Land Revenue Act, 1887, corresponding to Section 106 of the Himachal Pradesh Land Revenue Act, 1953 (Himachal Pradesh Act No. 6 of 1954). 15. It appears from the observations made by the High Court in the present case that the Local Commissioner omitted to scrupulously follow the applicable instructions for carrying out such demarcation and particularly omitted to fix three reference points on different sides of the land in question. However, the report made by the Local Commissioner was accepted by the Trial Court as also by the First Appellate Court. The question is: If the Local Commissioners report was suffering from want of compliance of the applicable instructions, what course was to be adopted by the High Court? 16. An appropriate answer to the question aforesaid is not far to seek. In the course of a civil suit, by way of incidental proceedings, the Court could issue a Commission, inter alia, for making local investigation, as per Section 75 of the Code of Civil Procedure (the Code hereafter). The procedure in relation to such Commission for local investigation is specified in Rules 9 and 10 of Order XXVI of the Code. Suffice it to notice for the present purpose that, as per clause (3) of Rule 10 of Order XXVI, where the Court is disssatisfied with the proceedings of such a Local Commissioner, it could direct such further inquiry to be made as considered fit. This clause (3) of Rule 10 of Order XXVI of the Code reads as under:- Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. 17. The fact that the Local Commissioners report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioners report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioners report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioners report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioners report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record. 18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.
### Response:
1
### Explanation:
12. Having given anxious consideration to the rival submissions, we are clearly of the view that the impugned judgment, on its final conclusion for dismissal of the suit cannot be sustained and the entire matter deserves to be remanded to the Trial Court for consideration afresh13. As noticed, in essence, the case of the plaintiffs has been that the defendants were interfering with, and encroaching over, a part of their land comprised in Khasra No. 146. The Trial Court dismissed the suit but the First Appellate Court, at the initial stage, found it just and proper that further issues be determined on the question/s as to whether the defendants had encroached over the suit land and, if so, the extent and the manner thereof. The Trial Court was further directed to appoint a Commissioner and to hear the parties on objections, if any, and then to return the findings on additionally framed issue Nos. 2-A and 2-B. The Trial Court did appoint a Commissioner who carried out demarcation; the objections to his report were rejected; and thereafter, the Trial Court returned the findings in favour of the plaintiffs14. After receiving findings from the Trial Court, the First Appellate Court decided the appeal by its detailed judgment dated 06.06.1995. The First Appellate Court referred not only to the Commissioners report but also to the oral and documentary evidence adduced by the parties. The First Appellate Court also observed that the Commissioner had made an exhaustive report after carrying out demarcation properly and there was nothing on record to show that the report could not be accepted. The First Appellate Court, though dealt with the matter in sufficient detail but appear to have not taken into consideration the method and procedure for carrying out such demarcation, as delineated by the High Court of Himachal Pradesh in the case of Laxmi Nand (supra) with reference to the applicable instructions and guidelines, as issued by the Financial Commissioner under Section 100 of the Punjab Land Revenue Act, 1887, corresponding to Section 106 of the Himachal Pradesh Land Revenue Act, 1953 (Himachal Pradesh Act No. 6 of 1954)15. It appears from the observations made by the High Court in the present case that the Local Commissioner omitted to scrupulously follow the applicable instructions for carrying out such demarcation and particularly omitted to fix three reference points on different sides of the land in question. However, the report made by the Local Commissioner was accepted by the Trial Court as also by the First Appellate Court.17. The fact that the Local Commissioners report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioners report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioners report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioners report, the High Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioners report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.
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Shyamrao Maroti Korwate Vs. Deepak Kisanrao Tekam | or her guardianship will not be for the welfare of the minor." 10. If we analyze the above provisions, one thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section 13 of the Act 1956 has to be construed literally and must be taken in its widest sense. 11. In Gaurav Nagpal vs. Sumedha Nagpal, (2009) 1 SCC 42 , this Court held: "51. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases." 12. In the light of the above background, let us consider whether the custody of the minor is to be entrusted with the maternal grandfather as ordered by the District Court or with the father as directed by the High Court. We have already referred to the fact that on 23.03.2003, after giving birth to the child, the mother died and the child was taken by the maternal grandfather. The maternal grand-father filed a petition for custody on 07.08.2003 and father also made a similar petition for custody on 15.10.2003. Before the District Judge, it was highlighted that immediately after the death of his wife, the respondent-husband married another woman and also has a son from his second marriage. Though the exact date of marriage is not mentioned anywhere, the fact remains that within a period of one year after the death of Kaveri, daughter of the appellant herein, the respondent-husband married another woman. It is also highlighted by the appellant that the respondent is working as an Operator in the Maharashtra State Electricity Board at a distance of 90 kms from his residence. It is further stated that the place where respondent is residing is a rural village and there is lack of better educational facilities. It is the claim of the maternal grandfather that he is a pensioner getting sizeable income by way of pension and other retiral benefits and also own agricultural properties. It is his further claim that he is living with his wife i.e. maternal grandmother of the child and other relatives such as sons and a daughter. It is also his claim that he is residing in a Taluk Centre where good educational facilities are available. 13. Though several allegations have been made by the parties against each other, we feel that in the absence of any specific finding by the Courts below on either of them, it is unnecessary to refer to the same. It is true that under the Act 1890, the father is the guardian of the minor child until he is found unfit to be a guardian of the minor. In deciding such question, this Court consistently held that the welfare of the minor child is the paramount consideration and such a question cannot be decided merely on the basis of the rights of the parties under the law. This principle is reiterated in Anjali Kapoor (Smt.) vs. Rajiv Baijal, (2009) 7 SCC 322. 14. Though father is the natural guardian in respect of a minor child, taking note of the fact that welfare of the minor to be of paramount consideration inasmuch as the respondent-father got married within a year after the death of his first wife-Kaveri and also having a son through the second marriage, residing in a rural village, working at a distance of 90 kms and of the fact that the child was all along with the maternal grand-father and his family since birth, residing in a Taluka Centre where the child is getting good education, we feel that the District Judge was justified in appointing the appellant maternal grandfather as guardian of the minor child till the age of 12 years.15. The High Court reversed the said conclusion and appointed father of the child as his guardian. It is true that the learned single Judge interacted with both the parties and the child separately and noted that "the child could not be unhappy, uncomfortable and unsafe in the custody of the father". However, there is no material to show that at any point of time the respondent-father had attempted to meet the child when he was in the custody of maternal grandfather. No doubt, it is true that on attaining the age of 12 years by the minor, the father is free to make a fresh application and depending on the welfare and wish of the child, further order has to be passed in the matter of custody. It is said that as on date, the child is aged about 8 years. Our anxiety is that after four years, i.e., after attaining the age of 12 years whether the child would show any inclination to join with his father. It is relevant to note that the maternal grandfather is aged about 63 years and if his sons are married, undoubtedly the child cannot get the same love and affection from him and his family.16. Inasmuch as the child has continuously been living with the maternal grandfather and his family from the date of his birth i.e. 23.03.2003 and getting good education at their hands, taking note of the position of the father of the child who is working 90 kms. away from his house in a rural village, we modify the order of the High Court and permit the appellant grandfather to have the custody of the child Vishwajeet @ Sangharsh till the age of 12 years as ordered by the District Judge. | 1[ds]10. If we analyze the above provisions, one thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section 13 of the Act 1956 has to be construed literally and must be taken in its widest sense.Though father is the natural guardian in respect of a minor child, taking note of the fact that welfare of the minor to be of paramount consideration inasmuch as the respondent-father got married within a year after the death of his first wife-Kaveri and also having a son through the second marriage, residing in a rural village, working at a distance of 90 kms and of the fact that the child was all along with the maternal grand-father and his family since birth, residing in a Taluka Centre where the child is getting good education, we feel that the District Judge was justified in appointing the appellant maternal grandfather as guardian of the minor child till the age of 12 years.15. The High Court reversed the said conclusion and appointed father of the child as his guardian. It is true that the learned single Judge interacted with both the parties and the child separately and noted that "the child could not be unhappy, uncomfortable and unsafe in the custody of the father". However, there is no material to show that at any point of time the respondent-father had attempted to meet the child when he was in the custody of maternal grandfather. No doubt, it is true that on attaining the age of 12 years by the minor, the father is free to make a fresh application and depending on the welfare and wish of the child, further order has to be passed in the matter of custody. It is said that as on date, the child is aged about 8 years. Our anxiety is that after four years, i.e., after attaining the age of 12 years whether the child would show any inclination to join with his father. It is relevant to note that the maternal grandfather is aged about 63 years and if his sons are married, undoubtedly the child cannot get the same love and affection from him and his family.16. Inasmuch as the child has continuously been living with the maternal grandfather and his family from the date of his birth i.e. 23.03.2003 and getting good education at their hands, taking note of the position of the father of the child who is working 90 kms. away from his house in a rural village, we modify the order of the High Court and permit the appellant grandfather to have the custody of the child Vishwajeet @ Sangharsh till the age of 12 years as ordered by the District Judge. The above conclusion is based on welfare of the minor as provided in Section 13 of the Act 1956. Since on completion of 12 years, a fresh decision is to be taken about entrusting the custody of the minor child, while modifying the order of the High Court as mentioned above, we issue the following directions about the visitation rights of the father: | 1 | 2,691 | 591 | ### 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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or her guardianship will not be for the welfare of the minor." 10. If we analyze the above provisions, one thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section 13 of the Act 1956 has to be construed literally and must be taken in its widest sense. 11. In Gaurav Nagpal vs. Sumedha Nagpal, (2009) 1 SCC 42 , this Court held: "51. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases." 12. In the light of the above background, let us consider whether the custody of the minor is to be entrusted with the maternal grandfather as ordered by the District Court or with the father as directed by the High Court. We have already referred to the fact that on 23.03.2003, after giving birth to the child, the mother died and the child was taken by the maternal grandfather. The maternal grand-father filed a petition for custody on 07.08.2003 and father also made a similar petition for custody on 15.10.2003. Before the District Judge, it was highlighted that immediately after the death of his wife, the respondent-husband married another woman and also has a son from his second marriage. Though the exact date of marriage is not mentioned anywhere, the fact remains that within a period of one year after the death of Kaveri, daughter of the appellant herein, the respondent-husband married another woman. It is also highlighted by the appellant that the respondent is working as an Operator in the Maharashtra State Electricity Board at a distance of 90 kms from his residence. It is further stated that the place where respondent is residing is a rural village and there is lack of better educational facilities. It is the claim of the maternal grandfather that he is a pensioner getting sizeable income by way of pension and other retiral benefits and also own agricultural properties. It is his further claim that he is living with his wife i.e. maternal grandmother of the child and other relatives such as sons and a daughter. It is also his claim that he is residing in a Taluk Centre where good educational facilities are available. 13. Though several allegations have been made by the parties against each other, we feel that in the absence of any specific finding by the Courts below on either of them, it is unnecessary to refer to the same. It is true that under the Act 1890, the father is the guardian of the minor child until he is found unfit to be a guardian of the minor. In deciding such question, this Court consistently held that the welfare of the minor child is the paramount consideration and such a question cannot be decided merely on the basis of the rights of the parties under the law. This principle is reiterated in Anjali Kapoor (Smt.) vs. Rajiv Baijal, (2009) 7 SCC 322. 14. Though father is the natural guardian in respect of a minor child, taking note of the fact that welfare of the minor to be of paramount consideration inasmuch as the respondent-father got married within a year after the death of his first wife-Kaveri and also having a son through the second marriage, residing in a rural village, working at a distance of 90 kms and of the fact that the child was all along with the maternal grand-father and his family since birth, residing in a Taluka Centre where the child is getting good education, we feel that the District Judge was justified in appointing the appellant maternal grandfather as guardian of the minor child till the age of 12 years.15. The High Court reversed the said conclusion and appointed father of the child as his guardian. It is true that the learned single Judge interacted with both the parties and the child separately and noted that "the child could not be unhappy, uncomfortable and unsafe in the custody of the father". However, there is no material to show that at any point of time the respondent-father had attempted to meet the child when he was in the custody of maternal grandfather. No doubt, it is true that on attaining the age of 12 years by the minor, the father is free to make a fresh application and depending on the welfare and wish of the child, further order has to be passed in the matter of custody. It is said that as on date, the child is aged about 8 years. Our anxiety is that after four years, i.e., after attaining the age of 12 years whether the child would show any inclination to join with his father. It is relevant to note that the maternal grandfather is aged about 63 years and if his sons are married, undoubtedly the child cannot get the same love and affection from him and his family.16. Inasmuch as the child has continuously been living with the maternal grandfather and his family from the date of his birth i.e. 23.03.2003 and getting good education at their hands, taking note of the position of the father of the child who is working 90 kms. away from his house in a rural village, we modify the order of the High Court and permit the appellant grandfather to have the custody of the child Vishwajeet @ Sangharsh till the age of 12 years as ordered by the District Judge.
### Response:
1
### Explanation:
10. If we analyze the above provisions, one thing is clear that in a matter of custody of a minor child, the paramount consideration is the "welfare of the minor" and not rights of the parents or relatives under a statute which are in force. The word "welfare" used in Section 13 of the Act 1956 has to be construed literally and must be taken in its widest sense.Though father is the natural guardian in respect of a minor child, taking note of the fact that welfare of the minor to be of paramount consideration inasmuch as the respondent-father got married within a year after the death of his first wife-Kaveri and also having a son through the second marriage, residing in a rural village, working at a distance of 90 kms and of the fact that the child was all along with the maternal grand-father and his family since birth, residing in a Taluka Centre where the child is getting good education, we feel that the District Judge was justified in appointing the appellant maternal grandfather as guardian of the minor child till the age of 12 years.15. The High Court reversed the said conclusion and appointed father of the child as his guardian. It is true that the learned single Judge interacted with both the parties and the child separately and noted that "the child could not be unhappy, uncomfortable and unsafe in the custody of the father". However, there is no material to show that at any point of time the respondent-father had attempted to meet the child when he was in the custody of maternal grandfather. No doubt, it is true that on attaining the age of 12 years by the minor, the father is free to make a fresh application and depending on the welfare and wish of the child, further order has to be passed in the matter of custody. It is said that as on date, the child is aged about 8 years. Our anxiety is that after four years, i.e., after attaining the age of 12 years whether the child would show any inclination to join with his father. It is relevant to note that the maternal grandfather is aged about 63 years and if his sons are married, undoubtedly the child cannot get the same love and affection from him and his family.16. Inasmuch as the child has continuously been living with the maternal grandfather and his family from the date of his birth i.e. 23.03.2003 and getting good education at their hands, taking note of the position of the father of the child who is working 90 kms. away from his house in a rural village, we modify the order of the High Court and permit the appellant grandfather to have the custody of the child Vishwajeet @ Sangharsh till the age of 12 years as ordered by the District Judge. The above conclusion is based on welfare of the minor as provided in Section 13 of the Act 1956. Since on completion of 12 years, a fresh decision is to be taken about entrusting the custody of the minor child, while modifying the order of the High Court as mentioned above, we issue the following directions about the visitation rights of the father:
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Jogendra Nath Naskar Vs. Commissioner of Income Tax, Calcutta | the idol may be to the worshipper a symbol (pratika) of the Supreme God-head intended to invoke a sense of the vast and intimate reality, and suggesting the essential truth of the Real that is beyond all name or form. It is a basic postulate of Hindu religion that different images do not represent different divinties, they are really symbols of One Supreme Spirit and in whichever name or form the deity is invoked, the Hindu worshipperr purports to worship the Supreme Spirit and nothing else.(Rig Veda I. 164)They have spoken of Him as Agni, Mitra, Varuna, Indra; the one Existence the sages speak of in many ways). The Bhagavad Gita echoes this verse when it says:(Thou art Vayu and Yama, Agni, Varuna and Moon; Lord of Creation art Thou, and Grandsire). Sankara, the great philosopher, refers to the one Reality, who, owing to the diversity of intellects (matibheda) is conventionally spoken of (parikalpya) in various ways as Brahma, Visnu and Mahesvara. It is however possible that the founder of the endowment or the worshipper may not conceive on this highest spiritual plane but hold that the idol is the very embodiment of a personal God, but that is not a matter with which the law is concerned.Neither God nor any supematural being could be a person in law. But so far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person. The true legal view is that in that capacity alone the dedicated property vests in it. There is no principle why a deity as such a legal person should not be taxed if such a legal person is allowed in law to own property even though in the ideal sense and to sue for the property, to realise rent and to defend such property in a Court of law again in the ideal sense. Our conclusion is that the Hindu idol is a juristic entity capable of holding property and of being taxed through its shebaits who are entrusted with the possession and management of its property, It was argued on behalf of the appellant that the word "individual" in Section 3 of the Act should not be construed as including a Hindu deity because it was not a real but a juristic person. We are unable to accept this argument as correct. We see no reason why the meaning of the word individual in Section 3 of the Act should be restricted to human beings and not to juristic entities.In Commissioner of Income-tax, Madhya Pradesh and Bhopal v. Sodra Devi, 1958 SCR 1 at p. 6=(AIR 1957 SC 832 at pp. 834-835), Mr. Justice Bhagwati pointed out as follows:-"the word individual has not been defined in the Act and there is authority, for the proposition that the word individual does not mean only a human being but is wide enough to include a group of persons forming a unit. It has been held that the word individual includes a Corporation created by a statute, e.g., a University or a Bar Council, or the trustees of a baronetcy trust incorporated by a Baronetcy Act".We are accordingly of opinion that a Hindu deity falls within the meaning of the word individual under Section 3 of the Act and can be treated as a unit of assessment under that Section.8. On behalf of the appellant Mr. Chagla referred to Section 2 sub-section (31) of the Income-tax Act, 1961 (Act No. 49 of 1961) which states:"2. In this Act, unless the context otherwise requires-* * * * *(31) person includes-(i) an individual,(ii) a Hindu undivided family,(iii) a company,(iv) a firm,(v) an association of persons or a body of individuals, whether incorporated or not,(vi) a local authority, and(vii) every artificial juridical person, not falling within any of the preceding sub-clauses".Counsel also referred to Section 2 (9) and Section 3 of the Income-tax Act, 1922 which state:"2. In this Act, unless there is anything repugnant in the subject or context-* * * * *(9) person includes Hindu undivided family and local authority.""3. Where any Central Act enacts that income-tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually".9. On a comparison of the provisions of the two Acts counsel on behalf of the appellant contended that a restricted meaning should be given to the word individual" in Section 3 of the earlier Act. We see no justification for this argument.On the other hand, we are of the opinion that the language employed in 1961 Act may be relied upon as a Parliamentary exposition of the earlier Act even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous. It is clear that the word "individual in Section 3 of the 1922 Act includes within its connotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961 Act. In Cape Brandy Syndicate v. Inland Revenue Commr., 1921-2 KB 403, Lord Sterndale M. R. said:I think it is clearly established in Attorney General v. Clarkson, 1900-1 QB 156 at pp. 168, 164, that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier Act.10. | 0[ds]Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha). The correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated propertyare accordingly of opinion that a Hindu deity falls within the meaning of the word individual under Section 3 of the Act and can be treated as a unit of assessment under thatsee no justification for this argument.On the other hand, we are of the opinion that the language employed in 1961 Act may be relied upon as a Parliamentary exposition of the earlier Act even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous. It is clear that the word "individual in Section 3 of the 1922 Act includes within its connotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961. It is well established by high authorities that a Hindu idol is a juristic person in whom the dedicated propertyShould however be remembered that, the juristic person in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated and vivified by the Pran Pratishta ceremony. It is not also correct that the supreme being of which the idol is a symbol or image is the recipient and owner of the dedicated property.This is clearly laid down in authoritative Sanskritaccording to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha). The correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated propertyaccording to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha). The correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated propertye accordingly of opinion that a Hindu deity falls within the meaning of the word individual under Section 3 of the Act and can be treated as a unit of assessment under thatsee no justification for this argument.On the other hand, we are of the opinion that the language employed in 1961 Act may be relied upon as a Parliamentary exposition of the earlier Act even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous. It is clear that the word "individual in Section 3 of the 1922 Act includes within its connotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961 | 0 | 3,936 | 538 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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the idol may be to the worshipper a symbol (pratika) of the Supreme God-head intended to invoke a sense of the vast and intimate reality, and suggesting the essential truth of the Real that is beyond all name or form. It is a basic postulate of Hindu religion that different images do not represent different divinties, they are really symbols of One Supreme Spirit and in whichever name or form the deity is invoked, the Hindu worshipperr purports to worship the Supreme Spirit and nothing else.(Rig Veda I. 164)They have spoken of Him as Agni, Mitra, Varuna, Indra; the one Existence the sages speak of in many ways). The Bhagavad Gita echoes this verse when it says:(Thou art Vayu and Yama, Agni, Varuna and Moon; Lord of Creation art Thou, and Grandsire). Sankara, the great philosopher, refers to the one Reality, who, owing to the diversity of intellects (matibheda) is conventionally spoken of (parikalpya) in various ways as Brahma, Visnu and Mahesvara. It is however possible that the founder of the endowment or the worshipper may not conceive on this highest spiritual plane but hold that the idol is the very embodiment of a personal God, but that is not a matter with which the law is concerned.Neither God nor any supematural being could be a person in law. But so far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person. The true legal view is that in that capacity alone the dedicated property vests in it. There is no principle why a deity as such a legal person should not be taxed if such a legal person is allowed in law to own property even though in the ideal sense and to sue for the property, to realise rent and to defend such property in a Court of law again in the ideal sense. Our conclusion is that the Hindu idol is a juristic entity capable of holding property and of being taxed through its shebaits who are entrusted with the possession and management of its property, It was argued on behalf of the appellant that the word "individual" in Section 3 of the Act should not be construed as including a Hindu deity because it was not a real but a juristic person. We are unable to accept this argument as correct. We see no reason why the meaning of the word individual in Section 3 of the Act should be restricted to human beings and not to juristic entities.In Commissioner of Income-tax, Madhya Pradesh and Bhopal v. Sodra Devi, 1958 SCR 1 at p. 6=(AIR 1957 SC 832 at pp. 834-835), Mr. Justice Bhagwati pointed out as follows:-"the word individual has not been defined in the Act and there is authority, for the proposition that the word individual does not mean only a human being but is wide enough to include a group of persons forming a unit. It has been held that the word individual includes a Corporation created by a statute, e.g., a University or a Bar Council, or the trustees of a baronetcy trust incorporated by a Baronetcy Act".We are accordingly of opinion that a Hindu deity falls within the meaning of the word individual under Section 3 of the Act and can be treated as a unit of assessment under that Section.8. On behalf of the appellant Mr. Chagla referred to Section 2 sub-section (31) of the Income-tax Act, 1961 (Act No. 49 of 1961) which states:"2. In this Act, unless the context otherwise requires-* * * * *(31) person includes-(i) an individual,(ii) a Hindu undivided family,(iii) a company,(iv) a firm,(v) an association of persons or a body of individuals, whether incorporated or not,(vi) a local authority, and(vii) every artificial juridical person, not falling within any of the preceding sub-clauses".Counsel also referred to Section 2 (9) and Section 3 of the Income-tax Act, 1922 which state:"2. In this Act, unless there is anything repugnant in the subject or context-* * * * *(9) person includes Hindu undivided family and local authority.""3. Where any Central Act enacts that income-tax shall be charged for any year at any rate or rates, tax at that rate or those rates shall be charged for that year in accordance with, and subject to the provisions of, this Act in respect of the total income of the previous year of every individual, Hindu undivided family, company and local authority, and of every firm and other association of persons or the partners of the firm or the members of the association individually".9. On a comparison of the provisions of the two Acts counsel on behalf of the appellant contended that a restricted meaning should be given to the word individual" in Section 3 of the earlier Act. We see no justification for this argument.On the other hand, we are of the opinion that the language employed in 1961 Act may be relied upon as a Parliamentary exposition of the earlier Act even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous. It is clear that the word "individual in Section 3 of the 1922 Act includes within its connotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961 Act. In Cape Brandy Syndicate v. Inland Revenue Commr., 1921-2 KB 403, Lord Sterndale M. R. said:I think it is clearly established in Attorney General v. Clarkson, 1900-1 QB 156 at pp. 168, 164, that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier Act.10.
### Response:
0
### Explanation:
Thus, according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha). The correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated propertyare accordingly of opinion that a Hindu deity falls within the meaning of the word individual under Section 3 of the Act and can be treated as a unit of assessment under thatsee no justification for this argument.On the other hand, we are of the opinion that the language employed in 1961 Act may be relied upon as a Parliamentary exposition of the earlier Act even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous. It is clear that the word "individual in Section 3 of the 1922 Act includes within its connotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961. It is well established by high authorities that a Hindu idol is a juristic person in whom the dedicated propertyShould however be remembered that, the juristic person in the idol is not the material image, and it is an exploded theory that the image itself develops into a legal person as soon as it is consecrated and vivified by the Pran Pratishta ceremony. It is not also correct that the supreme being of which the idol is a symbol or image is the recipient and owner of the dedicated property.This is clearly laid down in authoritative Sanskritaccording to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha). The correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated propertyaccording to the texts, the Gods have no beneficial enjoyment of the properties, and they can be described as their owners only in a figurative sense (Gaunartha). The correct legal position is that the idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated propertye accordingly of opinion that a Hindu deity falls within the meaning of the word individual under Section 3 of the Act and can be treated as a unit of assessment under thatsee no justification for this argument.On the other hand, we are of the opinion that the language employed in 1961 Act may be relied upon as a Parliamentary exposition of the earlier Act even on the assumption that the language employed in Section 3 of the earlier Act is ambiguous. It is clear that the word "individual in Section 3 of the 1922 Act includes within its connotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961
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Bhagwani Kuer (Dead) & Ors Vs. Tapeswari Kuer (Dead) & Ors | Kuer and Alodhan Kuer had applied for the probate of the will of Achhaiber Singh after the death of Shyam Narain Singh. Hence Shyam Narain Singh could not possibly join them at that time. He had died before the will could be duly proved. He was also said to have looked after the properties of the two ladies. The question before us is whether by taking part in cremation ceremonies and by helping two daughters-in-law to manage properties, Shayam Narain Singh manifested his intention to act as an executor so as to be covered by Section 141 of the Indian Succession Act, and, therefore, to claim his legacy.2. We may mention here that there was some previous litigation also between the parties. In Suit No. 144 of 1946, brought by the heirs of Shyam Narain Singh, against some of the defendants in the suit before us, the precise question before us for decision had arisen, but the High Court had not decided it. It had dismissed the suit on the ground that the plaintiffs had no locus standi. On the strength of that decision, the bar of res judicata is relied upon by the Defendants-Respondents before us as it was in the Courts below. But, as this appeal can be disposed of on the first question, already mentioned by us, relating to the application of Section 141 Indian Succession Act, we need not deal with the plea of res judicata.3. The suit before us was filed by the heirs of Shyam Narain Singh for a declaration of the rights of Shyam Narain Singh in the property bequeathed, and for a declaration that the compromise decree in suit No. 74 of 1944 was fraudulent, collusive, invalid, and not binding upon the plaintiffs. The Trial Court and then the Additional District Judge of Patna, on the first appeal of the Defendants-Respondents before us, had decreed the plaintiffs suit. The Additional District Judge had held that, by taking part in the cremation ceremonies and by helping the two legatees daughters-in-law of the testator, Shyam Narain Singh had manifested an intention to act as an executor before he died. The Additional District Judge had also taken into account the fact that the heirs of Shyam Narain Singh had taken some interest in the properties left by Achhaiber Singh by litigating for it. He thought that this was only possible if Shyam Narain Singh had himself manifested an interest in his rights under the will. This evidence was considered sufficient for holding that Shyam Narain Singh had manifested an intention to act as executor.4. The High Court of Patna had allowed the second appeal of defendants on the ground that the findings of fact recorded by Courts below were not enough to attract the application of Section 141 of the Indian Succession Act. The conduct of the relations of Shyam Narain Singh, in litigating for the property left by Achhaiber Singh was, as the High Court rightly pointed out, not relevant for determining the intentions of Shyam Narain Singh. Nor was the fact that he looked after the properties of the two co-legatees, who were widows, a manifestation of his own intention to assert his own rights as an executor. What was most important was the provision in the Will itself which had been overlooked by the first two courts. Achhaiber Singh had laid down in the Will: "That on the death of me, the executant, the aforesaid executors, should perform the Saradh ceremonies of me, the executant according to the means and custom in the family". The High Court had accepted the contention that there was no evidence that Shyam Narain Singh had performed Saradh ceremonies of Achhaiber Singh in accordance with the means and the custom in the family".5. The only contention which could be advanced before us on behalf of the plaintiffs-appellants was that cremation ceremonies do not end with actual cremation of the testator, but include other ceremonies such as Sraddha ceremonies which come later. In reply we have been referred to the meaning of the term "Sraddha" given in Sir M. Monier-Williams Sanskrit-English Dictionary (p. 1097) as follows:".........a ceremony in honour and for the benefit of dead relatives observed with great strictness at various fixed periods and on occasions of rejoicing as well as mourning by the surviving relatives (these ceremonies are performed by the daily offering of water and on stated occasions by the offering of Pindas or balls of rice and meal to three paternal and three maternal forefathers, i e. to father, grandfather, and great grandfather, it should be borne in mind that a Sraddha is not a funeral ceremony (antyeshti) but a supplement to such a ceremony; it is an act of reverential homage to a deceased person performed by relatives, and is moreover supposed to supply the dead with strengthening nutriment after the performance of the previous funeral ceremonies has endowed them with ethereal bodies; indeed until those antyeshti or funeral rites have been performed, and until the succeeding first Sraddha has been celebrated the deceased relative is a preta or restless, wandering ghost and has no real body (only a 1ingrasarira,q.v), it is not until the first Sraddha has taken place that he attains a position among the Pitris or Divine Fathers in their blissful abode called Pitri-loka, and the Sr. is most desirable and efficacious when performed by a son;"Thus, it is clear that there is a distinction between cremation ceremonies and Sraddha ceremonies which are periodic. It is also evident that what the testator desired his executors to do was that they should perform his Sraddha ceremonies. The manner in which he refers to Shyam Narain Singh in his will, almost as a substitute for a son, shows that he expected Shayam Narain Singh to perform his Sraddha ceremonies as his own sons had predeceased him. There is no evidence whatsoever on record that Shyam Narain Singh ever performed any such ceremony. The conclusion reached by the High Court is, therefore, correct. | 0[ds]In reply we have been referred to the meaning of the term "Sraddha" given in Sir M. Monier-Williams Sanskrit-English Dictionary (p. 1097) asceremony in honour and for the benefit of dead relatives observed with great strictness at various fixed periods and on occasions of rejoicing as well as mourning by the surviving relatives (these ceremonies are performed by the daily offering of water and on stated occasions by the offering of Pindas or balls of rice and meal to three paternal and three maternal forefathers, i e. to father, grandfather, and great grandfather, it should be borne in mind that a Sraddha is not a funeral ceremony (antyeshti) but a supplement to such a ceremony; it is an act of reverential homage to a deceased person performed by relatives, and is moreover supposed to supply the dead with strengthening nutriment after the performance of the previous funeral ceremonies has endowed them with ethereal bodies; indeed until those antyeshti or funeral rites have been performed, and until the succeeding first Sraddha has been celebrated the deceased relative is a preta or restless, wandering ghost and has no real body (only a 1ingrasarira,q.v), it is not until the first Sraddha has taken place that he attains a position among the Pitris or Divine Fathers in their blissful abode called Pitri-loka, and the Sr. is most desirable and efficacious when performed by ait is clear that there is a distinction between cremation ceremonies and Sraddha ceremonies which are periodic. It is also evident that what the testator desired his executors to do was that they should perform his Sraddha ceremonies. The manner in which he refers to Shyam Narain Singh in his will, almost as a substitute for a son, shows that he expected Shayam Narain Singh to perform his Sraddha ceremonies as his own sons had predeceased him. There is no evidence whatsoever on record that Shyam Narain Singh ever performed any such ceremony. The conclusion reached by the High Court is, therefore, correct. | 0 | 1,445 | 367 | ### Instruction:
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Kuer and Alodhan Kuer had applied for the probate of the will of Achhaiber Singh after the death of Shyam Narain Singh. Hence Shyam Narain Singh could not possibly join them at that time. He had died before the will could be duly proved. He was also said to have looked after the properties of the two ladies. The question before us is whether by taking part in cremation ceremonies and by helping two daughters-in-law to manage properties, Shayam Narain Singh manifested his intention to act as an executor so as to be covered by Section 141 of the Indian Succession Act, and, therefore, to claim his legacy.2. We may mention here that there was some previous litigation also between the parties. In Suit No. 144 of 1946, brought by the heirs of Shyam Narain Singh, against some of the defendants in the suit before us, the precise question before us for decision had arisen, but the High Court had not decided it. It had dismissed the suit on the ground that the plaintiffs had no locus standi. On the strength of that decision, the bar of res judicata is relied upon by the Defendants-Respondents before us as it was in the Courts below. But, as this appeal can be disposed of on the first question, already mentioned by us, relating to the application of Section 141 Indian Succession Act, we need not deal with the plea of res judicata.3. The suit before us was filed by the heirs of Shyam Narain Singh for a declaration of the rights of Shyam Narain Singh in the property bequeathed, and for a declaration that the compromise decree in suit No. 74 of 1944 was fraudulent, collusive, invalid, and not binding upon the plaintiffs. The Trial Court and then the Additional District Judge of Patna, on the first appeal of the Defendants-Respondents before us, had decreed the plaintiffs suit. The Additional District Judge had held that, by taking part in the cremation ceremonies and by helping the two legatees daughters-in-law of the testator, Shyam Narain Singh had manifested an intention to act as an executor before he died. The Additional District Judge had also taken into account the fact that the heirs of Shyam Narain Singh had taken some interest in the properties left by Achhaiber Singh by litigating for it. He thought that this was only possible if Shyam Narain Singh had himself manifested an interest in his rights under the will. This evidence was considered sufficient for holding that Shyam Narain Singh had manifested an intention to act as executor.4. The High Court of Patna had allowed the second appeal of defendants on the ground that the findings of fact recorded by Courts below were not enough to attract the application of Section 141 of the Indian Succession Act. The conduct of the relations of Shyam Narain Singh, in litigating for the property left by Achhaiber Singh was, as the High Court rightly pointed out, not relevant for determining the intentions of Shyam Narain Singh. Nor was the fact that he looked after the properties of the two co-legatees, who were widows, a manifestation of his own intention to assert his own rights as an executor. What was most important was the provision in the Will itself which had been overlooked by the first two courts. Achhaiber Singh had laid down in the Will: "That on the death of me, the executant, the aforesaid executors, should perform the Saradh ceremonies of me, the executant according to the means and custom in the family". The High Court had accepted the contention that there was no evidence that Shyam Narain Singh had performed Saradh ceremonies of Achhaiber Singh in accordance with the means and the custom in the family".5. The only contention which could be advanced before us on behalf of the plaintiffs-appellants was that cremation ceremonies do not end with actual cremation of the testator, but include other ceremonies such as Sraddha ceremonies which come later. In reply we have been referred to the meaning of the term "Sraddha" given in Sir M. Monier-Williams Sanskrit-English Dictionary (p. 1097) as follows:".........a ceremony in honour and for the benefit of dead relatives observed with great strictness at various fixed periods and on occasions of rejoicing as well as mourning by the surviving relatives (these ceremonies are performed by the daily offering of water and on stated occasions by the offering of Pindas or balls of rice and meal to three paternal and three maternal forefathers, i e. to father, grandfather, and great grandfather, it should be borne in mind that a Sraddha is not a funeral ceremony (antyeshti) but a supplement to such a ceremony; it is an act of reverential homage to a deceased person performed by relatives, and is moreover supposed to supply the dead with strengthening nutriment after the performance of the previous funeral ceremonies has endowed them with ethereal bodies; indeed until those antyeshti or funeral rites have been performed, and until the succeeding first Sraddha has been celebrated the deceased relative is a preta or restless, wandering ghost and has no real body (only a 1ingrasarira,q.v), it is not until the first Sraddha has taken place that he attains a position among the Pitris or Divine Fathers in their blissful abode called Pitri-loka, and the Sr. is most desirable and efficacious when performed by a son;"Thus, it is clear that there is a distinction between cremation ceremonies and Sraddha ceremonies which are periodic. It is also evident that what the testator desired his executors to do was that they should perform his Sraddha ceremonies. The manner in which he refers to Shyam Narain Singh in his will, almost as a substitute for a son, shows that he expected Shayam Narain Singh to perform his Sraddha ceremonies as his own sons had predeceased him. There is no evidence whatsoever on record that Shyam Narain Singh ever performed any such ceremony. The conclusion reached by the High Court is, therefore, correct.
### Response:
0
### Explanation:
In reply we have been referred to the meaning of the term "Sraddha" given in Sir M. Monier-Williams Sanskrit-English Dictionary (p. 1097) asceremony in honour and for the benefit of dead relatives observed with great strictness at various fixed periods and on occasions of rejoicing as well as mourning by the surviving relatives (these ceremonies are performed by the daily offering of water and on stated occasions by the offering of Pindas or balls of rice and meal to three paternal and three maternal forefathers, i e. to father, grandfather, and great grandfather, it should be borne in mind that a Sraddha is not a funeral ceremony (antyeshti) but a supplement to such a ceremony; it is an act of reverential homage to a deceased person performed by relatives, and is moreover supposed to supply the dead with strengthening nutriment after the performance of the previous funeral ceremonies has endowed them with ethereal bodies; indeed until those antyeshti or funeral rites have been performed, and until the succeeding first Sraddha has been celebrated the deceased relative is a preta or restless, wandering ghost and has no real body (only a 1ingrasarira,q.v), it is not until the first Sraddha has taken place that he attains a position among the Pitris or Divine Fathers in their blissful abode called Pitri-loka, and the Sr. is most desirable and efficacious when performed by ait is clear that there is a distinction between cremation ceremonies and Sraddha ceremonies which are periodic. It is also evident that what the testator desired his executors to do was that they should perform his Sraddha ceremonies. The manner in which he refers to Shyam Narain Singh in his will, almost as a substitute for a son, shows that he expected Shayam Narain Singh to perform his Sraddha ceremonies as his own sons had predeceased him. There is no evidence whatsoever on record that Shyam Narain Singh ever performed any such ceremony. The conclusion reached by the High Court is, therefore, correct.
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Commissioner of Income Tax Vs. V. Venkatachalam | question was referred at the instance of the Revenue 3. Under Section 14 of the Income Tax Act, Capital gains is a separate had of income. Capital gains have to be computed in accordance with the provisions contained in Section 45 to 48, among other provisions, occurring under the sub-head E - Capital gains in Chapter IV - Computation of Total Income. Section 48, as it stood at the relevant time, prescribed the manner in which the capital gains have to be determined. It read "48. (1) The income chargeable under the head Capital gains shall be computed, - (a) by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely (i) expenditure incurred wholly and exclusively in connection with such transfer; (ii) the cost of acquisition of the capital asses and the cost of any improvement thereto; " * 4. Section 80-T, as it was in force at the relevant, time, provided for deductions in the case of long-term capital gains. Section 80-T, insofar as is relevant, read as follows "Where the gross total income of an assessee not being a company includes not income chargeable under the head Capital gains relating to capital assets other than short-term capital assets (such income being, hereinafter, referred to as long-term capital gains), there shall be allowed, in computing the total income of the assessee, a deduction from such income of an amount equal to; " * 5. The language of Section 80-T is plain and unambiguous. It says, - (i) Where the gross total income of an assessee (not being a company) (ii) includes any income chargeable under the head Capital gains in the nature of long-term capital gains (iii) there shall be allowed, in computing the total income of the assessee, a deduction from such income of an amount equal to 6. Evidently, the deductions provided for by the said provision had to be made from out of the capital gains. In this case the capital gain was Rs. 1, 02, 740. It is on the said sum that the deductions provided for by Section 80-T had to be applied. In such a case, no question can arise of the business loss being set off against this capital gain. The profits and gains (and loss) from business had to be computed in accordance with a different set of provisions namely Section 30 to 43-A, as they obtained at that time. Room of argument has arisen on account of the use of the words from such income in the main limb of Section 80-T. Relying upon the said words, the Revenue contends that the Income Tax Officer must apply the deductions under Section 80-T to the total income computed by him in accordance with the Act. The order of the Income Tax Officer is sought to be justified on this basis. It is not possible to agree. The language of the Section 80-T, reasonably understood, is not capable of and does not admit such construction. Probably, the placement of Section 80-T is wrong. It ought to have been placed alongside Section 48, as has since been done by the Finance Act, 1987, with effect from April 1, 1988. By the said Act, Section 80-T has been omitted and its provisions, with certain changes, have been placed in Section 48. (Of course, Section 48 has been totally recast with effect from April 1, 1993 by Finance Act, 1992.) The words "such income", in our opinion meant and referred to the capital gains and not the total income of the assessee 7. The learned counsel for the Revenue, Shri Shukla, pointed out that the High Court has, while answering the question referred against the Revenue, applied the principle of Cloth Traders (P) Ltd. v. Addl. C. I. T. While construing the words such income. Inasmuch as the said decision has been overruled by this Court in Distributors (Baroda) (P) Ltd. v. Union of India it is argued, the very basis of the High Courts judgment gets knocked out. In our opinion, the said argument is beside the point. The character of deduction provided by Section 80-M, which was the provision considered in the said two decisions of this Court, is different from the character of deduction provided by Section 80-T. Because the same words occur in both the sections, it does not necessarily follow that they must carry the same meaning. The High Court has referred to the decision in Cloth traders by way of an additional factor supporting is understanding and nothing more. The fact Cloth Traders has since been overruled makes no difference to the ration of the decision of the High Court 8. Reliance is then placed upon the decision of this Court in Cambay Electric Supply Industrial Co. Ltd. v. C. I. T. That said decision was rendered with reference to Section 80-E, as it then stood. Two questions arose for consideration in that case viz. (i) Whether the balancing charge (i. e. deemed profits) computed under Section 41 (2) of the Income Tax Act should be added to the business income before applying the deduction provided by Section 80-E and (ii) Whether the unabsorbed depreciation and development rebate should be deducted out of such income before applying the deduction provided by Section 80-E. This Court held on the first question that the deemed profits arising under Section 41 (2) shall have to be added to the business income before making the said deduction. On the second question, it was held that unabsorbed depreciation and development rebate shall have to be deducted before making the said deduction. In short, the principle of the decision is that the Income Tax Officer must first have to arrive at the profits and gains of the business in accordance with Sections 28 to 43-A before granting the deduction provided for by Section 80-E. We do not think that the principle of the said decision has any relevances herein | 0[ds]6. Evidently, the deductions provided for by the said provision had to be made from out of the capital gains. In this case the capital gain was Rs. 1, 02, 740. It is on the said sum that the deductions provided for by SectionT had to be applied. In such a case, no question can arise of the business loss being set off against this capital gain. The profits and gains (and loss) from business had to be computed in accordance with a different set of provisions namely Section 30 to, as they obtained at that time. Room of argument has arisen on account of the use of the words from such income in the main limb of Section. Relying upon the said words, the Revenue contends that the Income Tax Officer must apply the deductions under SectionT to the total income computed by him in accordance with the Act. The order of the Income Tax Officer is sought to be justified on this basis. It is not possible to agree. The language of the Section, reasonably understood, is not capable of and does not admit such construction. Probably, the placement of SectionT is wrong. It ought to have been placed alongside Section 48, as has since been done by the Finance Act, 1987, with effect from April 1, 1988. By the said Act, SectionT has been omitted and its provisions, with certain changes, have been placed in Section 48. (Of course, Section 48 has been totally recast with effect from April 1, 1993 by Finance Act, 1992.) The words "such income", in our opinion meant and referred to the capital gains and not the total income of the assesseeIn our opinion, the said argument is beside the point. The character of deduction provided by Section, which was the provision considered in the said two decisions of this Court, is different from the character of deduction provided by Section. Because the same words occur in both the sections, it does not necessarily follow that they must carry the same meaning. The High Court has referred to the decision in Cloth traders by way of an additional factor supporting is understanding and nothing more. The fact Cloth Traders has since been overruled makes no difference to the ration of the decision of the High Court8. Reliance is then placed upon the decision of this Court in Cambay Electric Supply Industrial Co. Ltd. v. C. I. T. That said decision was rendered with reference to Section, as it then stood. Two questions arose for consideration in that case viz. (i) Whether the balancing charge (i. e. deemed profits) computed under Section 41 (2) of the Income Tax Act should be added to the business income before applying the deduction provided by SectionE and (ii) Whether the unabsorbed depreciation and development rebate should be deducted out of such income before applying the deduction provided by Section. This Court held on the first question that the deemed profits arising under Section 41 (2) shall have to be added to the business income before making the said deduction. On the second question, it was held that unabsorbed depreciation and development rebate shall have to be deducted before making the said deduction. In short, the principle of the decision is that the Income Tax Officer must first have to arrive at the profits and gains of the business in accordance with Sections 28 toA before granting the deduction provided for by Section. We do not think that the principle of the said decision has any relevances herein | 0 | 1,431 | 665 | ### 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:
question was referred at the instance of the Revenue 3. Under Section 14 of the Income Tax Act, Capital gains is a separate had of income. Capital gains have to be computed in accordance with the provisions contained in Section 45 to 48, among other provisions, occurring under the sub-head E - Capital gains in Chapter IV - Computation of Total Income. Section 48, as it stood at the relevant time, prescribed the manner in which the capital gains have to be determined. It read "48. (1) The income chargeable under the head Capital gains shall be computed, - (a) by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely (i) expenditure incurred wholly and exclusively in connection with such transfer; (ii) the cost of acquisition of the capital asses and the cost of any improvement thereto; " * 4. Section 80-T, as it was in force at the relevant, time, provided for deductions in the case of long-term capital gains. Section 80-T, insofar as is relevant, read as follows "Where the gross total income of an assessee not being a company includes not income chargeable under the head Capital gains relating to capital assets other than short-term capital assets (such income being, hereinafter, referred to as long-term capital gains), there shall be allowed, in computing the total income of the assessee, a deduction from such income of an amount equal to; " * 5. The language of Section 80-T is plain and unambiguous. It says, - (i) Where the gross total income of an assessee (not being a company) (ii) includes any income chargeable under the head Capital gains in the nature of long-term capital gains (iii) there shall be allowed, in computing the total income of the assessee, a deduction from such income of an amount equal to 6. Evidently, the deductions provided for by the said provision had to be made from out of the capital gains. In this case the capital gain was Rs. 1, 02, 740. It is on the said sum that the deductions provided for by Section 80-T had to be applied. In such a case, no question can arise of the business loss being set off against this capital gain. The profits and gains (and loss) from business had to be computed in accordance with a different set of provisions namely Section 30 to 43-A, as they obtained at that time. Room of argument has arisen on account of the use of the words from such income in the main limb of Section 80-T. Relying upon the said words, the Revenue contends that the Income Tax Officer must apply the deductions under Section 80-T to the total income computed by him in accordance with the Act. The order of the Income Tax Officer is sought to be justified on this basis. It is not possible to agree. The language of the Section 80-T, reasonably understood, is not capable of and does not admit such construction. Probably, the placement of Section 80-T is wrong. It ought to have been placed alongside Section 48, as has since been done by the Finance Act, 1987, with effect from April 1, 1988. By the said Act, Section 80-T has been omitted and its provisions, with certain changes, have been placed in Section 48. (Of course, Section 48 has been totally recast with effect from April 1, 1993 by Finance Act, 1992.) The words "such income", in our opinion meant and referred to the capital gains and not the total income of the assessee 7. The learned counsel for the Revenue, Shri Shukla, pointed out that the High Court has, while answering the question referred against the Revenue, applied the principle of Cloth Traders (P) Ltd. v. Addl. C. I. T. While construing the words such income. Inasmuch as the said decision has been overruled by this Court in Distributors (Baroda) (P) Ltd. v. Union of India it is argued, the very basis of the High Courts judgment gets knocked out. In our opinion, the said argument is beside the point. The character of deduction provided by Section 80-M, which was the provision considered in the said two decisions of this Court, is different from the character of deduction provided by Section 80-T. Because the same words occur in both the sections, it does not necessarily follow that they must carry the same meaning. The High Court has referred to the decision in Cloth traders by way of an additional factor supporting is understanding and nothing more. The fact Cloth Traders has since been overruled makes no difference to the ration of the decision of the High Court 8. Reliance is then placed upon the decision of this Court in Cambay Electric Supply Industrial Co. Ltd. v. C. I. T. That said decision was rendered with reference to Section 80-E, as it then stood. Two questions arose for consideration in that case viz. (i) Whether the balancing charge (i. e. deemed profits) computed under Section 41 (2) of the Income Tax Act should be added to the business income before applying the deduction provided by Section 80-E and (ii) Whether the unabsorbed depreciation and development rebate should be deducted out of such income before applying the deduction provided by Section 80-E. This Court held on the first question that the deemed profits arising under Section 41 (2) shall have to be added to the business income before making the said deduction. On the second question, it was held that unabsorbed depreciation and development rebate shall have to be deducted before making the said deduction. In short, the principle of the decision is that the Income Tax Officer must first have to arrive at the profits and gains of the business in accordance with Sections 28 to 43-A before granting the deduction provided for by Section 80-E. We do not think that the principle of the said decision has any relevances herein
### Response:
0
### Explanation:
6. Evidently, the deductions provided for by the said provision had to be made from out of the capital gains. In this case the capital gain was Rs. 1, 02, 740. It is on the said sum that the deductions provided for by SectionT had to be applied. In such a case, no question can arise of the business loss being set off against this capital gain. The profits and gains (and loss) from business had to be computed in accordance with a different set of provisions namely Section 30 to, as they obtained at that time. Room of argument has arisen on account of the use of the words from such income in the main limb of Section. Relying upon the said words, the Revenue contends that the Income Tax Officer must apply the deductions under SectionT to the total income computed by him in accordance with the Act. The order of the Income Tax Officer is sought to be justified on this basis. It is not possible to agree. The language of the Section, reasonably understood, is not capable of and does not admit such construction. Probably, the placement of SectionT is wrong. It ought to have been placed alongside Section 48, as has since been done by the Finance Act, 1987, with effect from April 1, 1988. By the said Act, SectionT has been omitted and its provisions, with certain changes, have been placed in Section 48. (Of course, Section 48 has been totally recast with effect from April 1, 1993 by Finance Act, 1992.) The words "such income", in our opinion meant and referred to the capital gains and not the total income of the assesseeIn our opinion, the said argument is beside the point. The character of deduction provided by Section, which was the provision considered in the said two decisions of this Court, is different from the character of deduction provided by Section. Because the same words occur in both the sections, it does not necessarily follow that they must carry the same meaning. The High Court has referred to the decision in Cloth traders by way of an additional factor supporting is understanding and nothing more. The fact Cloth Traders has since been overruled makes no difference to the ration of the decision of the High Court8. Reliance is then placed upon the decision of this Court in Cambay Electric Supply Industrial Co. Ltd. v. C. I. T. That said decision was rendered with reference to Section, as it then stood. Two questions arose for consideration in that case viz. (i) Whether the balancing charge (i. e. deemed profits) computed under Section 41 (2) of the Income Tax Act should be added to the business income before applying the deduction provided by SectionE and (ii) Whether the unabsorbed depreciation and development rebate should be deducted out of such income before applying the deduction provided by Section. This Court held on the first question that the deemed profits arising under Section 41 (2) shall have to be added to the business income before making the said deduction. On the second question, it was held that unabsorbed depreciation and development rebate shall have to be deducted before making the said deduction. In short, the principle of the decision is that the Income Tax Officer must first have to arrive at the profits and gains of the business in accordance with Sections 28 toA before granting the deduction provided for by Section. We do not think that the principle of the said decision has any relevances herein
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Goverdhan Lal Dhawan Vs. State Of Bihar & Others | States to enter into an inter-State agreement. In the same decision at Pages 483-484 the Court made the following observations in respect of inter-regional permits: "In the case of inter-regional permits an application under section 45 of the Act has to be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles. Then under section 63 of the Act a permit granted by the Regional Transport Authority of one region shall not be valid in any other region unless the permit is countersigned by the Regional Transport Authority of that other region. Section 63(3) of the Act makes the provisions of Chapter IV applicable relating to the grant, revocation and suspension of permits to the grant, revocation and suspension of countersignature of permits. The result is that sections 47 to 68 which occur in Chapter IV are therefore attracted in case of inter-regional permits. In view of the fact that section 47(3) of the Act is restricted in its field in or within the region, the provisions in terms do not become applicable to inter-regional permits. Section 68 of the Act contemplates rules and conditions subject to which and the extent to which, a permit shall be valid in another region within the State without countersignature. W e have not been shown any rules to that effect. The reasons which do not make section 47(3) applicable to inter-State permit apply proprio vigore to inter-regional permits. "It is significant that the Act does not contain any procedure for two or more Regional Transport Authorities entering into an agreement before an application for an inter-regional permit is granted. The only provision which provides for an agreement to be arrived at for purposes of countersignatures is the agreement between two or more States referred to in the first proviso to sub-section (3) of section 63 of the Act. An inter-State agreement of that nature can be arrived at only after following the procedure prescribed under sub-section (3-A) of section 63 of the Act which provides for the publication of the proposal to enter into an agreement between the concerned States in the official Gazette and calling for representations in connection therewith from the affected parties and also the publication of the time and place at which the proposal or any representation is received in connection therewith will be considered by the Government concerned. At that stage it is open to the parties who are affected by the proposal to make all representations which they wish to make including the representation that there is no necessity to introduce any more stage carriages on the inter-State routes in question. In one sense the procedure prescribed in sub-section (3-A) of section 63 of the Act takes the place of the procedure to be followed by a Regional Transport Authority while granting or counter-signing permits. If any State Government is of opinion that i n the case of inter-regional permits within its territory there should be a similar agreement between the Regional Transport Authorities concerned before granting any inter-regional permit, it may frame appropriate rules providing fur-publication of the proposal to enter into an agreement, inviting objections to the proposal and hearing objections and representations of the affected parties by the concerned Regional Transport Authorities before entering into any such agreement. In the absence of any such rules being there, it is open to the affected parties to raise the contention that there is no necessity to issue any additional inter-regional permit before the Regional Transport Authority to which application for the g rant of a permit is made as well as the Regional Transport Authority to which an application for counter-signature of the permit is made.In the instant case since there is no provision in the Act or in the Rules made by the State Government requiring the existence of such a prior agreement, it is difficult to hold that in the absence of such a prior agreement between the Regional Transport Authorities concerned an application for the grant of an inter-regional permit should not be taken up for consideration by a Regional Transport Authority which has the jurisdiction to grant it under section 45 of the Act. If a permit is issued by a Regional Transport Authority and it is not countersigned by the other Regional Transport Authority the permit will not be effective in the other region. What we have observed above is in accord with the decision of a Constitution Bench of this Court in M/s. Bundelkhand Motor Transport Company, Nowgaon v. Behari Lal Chaurasia and Another, [1966 ] 1 S.C.R. 485. In that case at Page 492 the Constitution Bench has observed thus: "Under s. 63 a permit granted by the Regional Trans port Authority of one region is not valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region. The clearest implication of this provision is that even an inter-regional permit when granted is valid for the region over which the Authority granting the permit has jurisdiction, and when it is countersigned by the Regional Transport Authority of the other region, the permit becomes valid for the entire rout e. We are unable to agree with counsel for the respondent that the permit has no validity whatever until it is countersigned by the Regional Transport Authority of the other region " 5. The North Bihar Regional Transport Authority has, therefore, jurisdiction to consider the applications for the grant of the inter-regional permits in question. After they are granted, it is open to the South Bihar Regional Transport Authority to consider whether they should be countersigned or not after following the prescribed procedure.The High Court was, therefore, right in dismissing the Writ Petition. | 0[ds]5. The North Bihar Regional Transport Authority has, therefore, jurisdiction to consider the applications for the grant of thepermits in question. After they are granted, it is open to the South Bihar Regional Transport Authority to consider whether they should be countersigned or not after following the prescribed procedure.The High Court was, therefore, right in dismissing the Writ Petition. | 0 | 3,550 | 71 | ### 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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States to enter into an inter-State agreement. In the same decision at Pages 483-484 the Court made the following observations in respect of inter-regional permits: "In the case of inter-regional permits an application under section 45 of the Act has to be made to the Regional Transport Authority of the region in which the major portion of the proposed route or area lies and in case the portion of the proposed route or area in each of the regions is approximately equal, to the Regional Transport Authority of the region in which it is proposed to keep the vehicle or vehicles. Then under section 63 of the Act a permit granted by the Regional Transport Authority of one region shall not be valid in any other region unless the permit is countersigned by the Regional Transport Authority of that other region. Section 63(3) of the Act makes the provisions of Chapter IV applicable relating to the grant, revocation and suspension of permits to the grant, revocation and suspension of countersignature of permits. The result is that sections 47 to 68 which occur in Chapter IV are therefore attracted in case of inter-regional permits. In view of the fact that section 47(3) of the Act is restricted in its field in or within the region, the provisions in terms do not become applicable to inter-regional permits. Section 68 of the Act contemplates rules and conditions subject to which and the extent to which, a permit shall be valid in another region within the State without countersignature. W e have not been shown any rules to that effect. The reasons which do not make section 47(3) applicable to inter-State permit apply proprio vigore to inter-regional permits. "It is significant that the Act does not contain any procedure for two or more Regional Transport Authorities entering into an agreement before an application for an inter-regional permit is granted. The only provision which provides for an agreement to be arrived at for purposes of countersignatures is the agreement between two or more States referred to in the first proviso to sub-section (3) of section 63 of the Act. An inter-State agreement of that nature can be arrived at only after following the procedure prescribed under sub-section (3-A) of section 63 of the Act which provides for the publication of the proposal to enter into an agreement between the concerned States in the official Gazette and calling for representations in connection therewith from the affected parties and also the publication of the time and place at which the proposal or any representation is received in connection therewith will be considered by the Government concerned. At that stage it is open to the parties who are affected by the proposal to make all representations which they wish to make including the representation that there is no necessity to introduce any more stage carriages on the inter-State routes in question. In one sense the procedure prescribed in sub-section (3-A) of section 63 of the Act takes the place of the procedure to be followed by a Regional Transport Authority while granting or counter-signing permits. If any State Government is of opinion that i n the case of inter-regional permits within its territory there should be a similar agreement between the Regional Transport Authorities concerned before granting any inter-regional permit, it may frame appropriate rules providing fur-publication of the proposal to enter into an agreement, inviting objections to the proposal and hearing objections and representations of the affected parties by the concerned Regional Transport Authorities before entering into any such agreement. In the absence of any such rules being there, it is open to the affected parties to raise the contention that there is no necessity to issue any additional inter-regional permit before the Regional Transport Authority to which application for the g rant of a permit is made as well as the Regional Transport Authority to which an application for counter-signature of the permit is made.In the instant case since there is no provision in the Act or in the Rules made by the State Government requiring the existence of such a prior agreement, it is difficult to hold that in the absence of such a prior agreement between the Regional Transport Authorities concerned an application for the grant of an inter-regional permit should not be taken up for consideration by a Regional Transport Authority which has the jurisdiction to grant it under section 45 of the Act. If a permit is issued by a Regional Transport Authority and it is not countersigned by the other Regional Transport Authority the permit will not be effective in the other region. What we have observed above is in accord with the decision of a Constitution Bench of this Court in M/s. Bundelkhand Motor Transport Company, Nowgaon v. Behari Lal Chaurasia and Another, [1966 ] 1 S.C.R. 485. In that case at Page 492 the Constitution Bench has observed thus: "Under s. 63 a permit granted by the Regional Trans port Authority of one region is not valid in any other region, unless the permit has been countersigned by the Regional Transport Authority of that other region. The clearest implication of this provision is that even an inter-regional permit when granted is valid for the region over which the Authority granting the permit has jurisdiction, and when it is countersigned by the Regional Transport Authority of the other region, the permit becomes valid for the entire rout e. We are unable to agree with counsel for the respondent that the permit has no validity whatever until it is countersigned by the Regional Transport Authority of the other region " 5. The North Bihar Regional Transport Authority has, therefore, jurisdiction to consider the applications for the grant of the inter-regional permits in question. After they are granted, it is open to the South Bihar Regional Transport Authority to consider whether they should be countersigned or not after following the prescribed procedure.The High Court was, therefore, right in dismissing the Writ Petition.
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### Explanation:
5. The North Bihar Regional Transport Authority has, therefore, jurisdiction to consider the applications for the grant of thepermits in question. After they are granted, it is open to the South Bihar Regional Transport Authority to consider whether they should be countersigned or not after following the prescribed procedure.The High Court was, therefore, right in dismissing the Writ Petition.
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Porcelain Electrical Manufacturing Company Vs. Collector of Central Excise, New Delhi | 1. The question that arises for consideration in these appeals directed against the order of Customs, Excise & Gold.(Control) Appellate Tribunal, New Delhi is whether the Tribunal was justified in rejecting the claim for refund for the period which was beyond six months from the date the duty was paid 2. Various items of porcelain manufactured by the appellant for use as components of insulating device were assessed to duty under Tariff Item 23-B-CET. In English Electric Co. of India Ltd. v. Supdt., Central Excise the Madras High Court held that such items were not dutiable under Item 23-B. It is not disputed that this decision has been upheld by this Court. The appellant, therefore, on 12-6-1978 and 16-6-1978 filed two applications for refund of duty paid by it before the Assistant Collector for the period 1-4-1977 to 31-3-1978 and 18-6-1975 to 31-3-1977 respectively. It was claimed that in view of the decision in English Electric Co. the insulators manufactured by the appellant could not have been classified under Tariff Item 23-B. The Collector did not dispute the claim of the appellant that the insulators were not dutiable but the claim for refund was rejected as, according to the Collector, it was beyond six months, the period of limitation provided under Rule 11, as it then stood, for making an application for refund from the date the duty was paid. In appeal before the Tribunal, it was claimed that since duty had been paid under mistake of law, the claim for refund was not governed by the provisions of Rule 11 of the Central Excise Rules, 1944, and the period applicable was three years from the date of knowledge of the mistake under the Limitation Act, 1963. The plea was repelled by the Tribunal and it was held that limitation having been provided under the Act the Department could not go against it3. In challenging the order of the Tribunal the learned counsel for the appellant urged that the duty having been paid under mistake of law, the period of limitation applicable was three years. Reliance is placed on CST v. Auriaya Chamber of Commerce, D. Cawasji & Co. v. State of Mysore and English Electric Co. None of these decisions appear to be helpful. The decisions were rendered in cases in which the assessee had sought its remedy by way of invoking extraordinary jurisdiction of the High Court or this Court and it was in those cases that the Court held that the period of limitation was three years 4. In our opinion, the controversy stands concluded by the decision of this Court in CCE v. Doaba Coop. Sugar Mills Ltd. 1988 Supp(SCC) 683 : 1989 SCC(Tax) 23) The relevant observations are extracted below : (SCC p. 684, para 6)"But in making claims for refund before the departmental authority, an assessee is bound within four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act." * 5. Since the appellant had filed an application under Rule 11 read with Rule 173-J and sought its remedy under the statute, it was bound by the limitation provided under the Act and the Rules. It was not open to the appellant to claim that even though the period of limitation was providedunder the statute for refund, the application filed by it should be processed and considered under the general law of limitation | 0[ds]4. In our opinion, the controversy stands concluded by the decision of this Court in CCE v. Doaba Coop. Sugar Mills Ltd. 1988 Supp(SCC) 683 : 1989 SCC(Tax) 23) The relevant observations are extracted below : (SCC p. 684, para 6)"But in making claims for refund before the departmental authority, an assessee is bound within four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act."Since the appellant had filed an application under Rule 11 read with Ruleand sought its remedy under the statute, it was bound by the limitation provided under the Act and the Rules. It was not open to the appellant to claim that even though the period of limitation was providedunder the statute for refund, the application filed by it should be processed and considered under the general law of limitation | 0 | 645 | 190 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
1. The question that arises for consideration in these appeals directed against the order of Customs, Excise & Gold.(Control) Appellate Tribunal, New Delhi is whether the Tribunal was justified in rejecting the claim for refund for the period which was beyond six months from the date the duty was paid 2. Various items of porcelain manufactured by the appellant for use as components of insulating device were assessed to duty under Tariff Item 23-B-CET. In English Electric Co. of India Ltd. v. Supdt., Central Excise the Madras High Court held that such items were not dutiable under Item 23-B. It is not disputed that this decision has been upheld by this Court. The appellant, therefore, on 12-6-1978 and 16-6-1978 filed two applications for refund of duty paid by it before the Assistant Collector for the period 1-4-1977 to 31-3-1978 and 18-6-1975 to 31-3-1977 respectively. It was claimed that in view of the decision in English Electric Co. the insulators manufactured by the appellant could not have been classified under Tariff Item 23-B. The Collector did not dispute the claim of the appellant that the insulators were not dutiable but the claim for refund was rejected as, according to the Collector, it was beyond six months, the period of limitation provided under Rule 11, as it then stood, for making an application for refund from the date the duty was paid. In appeal before the Tribunal, it was claimed that since duty had been paid under mistake of law, the claim for refund was not governed by the provisions of Rule 11 of the Central Excise Rules, 1944, and the period applicable was three years from the date of knowledge of the mistake under the Limitation Act, 1963. The plea was repelled by the Tribunal and it was held that limitation having been provided under the Act the Department could not go against it3. In challenging the order of the Tribunal the learned counsel for the appellant urged that the duty having been paid under mistake of law, the period of limitation applicable was three years. Reliance is placed on CST v. Auriaya Chamber of Commerce, D. Cawasji & Co. v. State of Mysore and English Electric Co. None of these decisions appear to be helpful. The decisions were rendered in cases in which the assessee had sought its remedy by way of invoking extraordinary jurisdiction of the High Court or this Court and it was in those cases that the Court held that the period of limitation was three years 4. In our opinion, the controversy stands concluded by the decision of this Court in CCE v. Doaba Coop. Sugar Mills Ltd. 1988 Supp(SCC) 683 : 1989 SCC(Tax) 23) The relevant observations are extracted below : (SCC p. 684, para 6)"But in making claims for refund before the departmental authority, an assessee is bound within four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act." * 5. Since the appellant had filed an application under Rule 11 read with Rule 173-J and sought its remedy under the statute, it was bound by the limitation provided under the Act and the Rules. It was not open to the appellant to claim that even though the period of limitation was providedunder the statute for refund, the application filed by it should be processed and considered under the general law of limitation
### Response:
0
### Explanation:
4. In our opinion, the controversy stands concluded by the decision of this Court in CCE v. Doaba Coop. Sugar Mills Ltd. 1988 Supp(SCC) 683 : 1989 SCC(Tax) 23) The relevant observations are extracted below : (SCC p. 684, para 6)"But in making claims for refund before the departmental authority, an assessee is bound within four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act."Since the appellant had filed an application under Rule 11 read with Ruleand sought its remedy under the statute, it was bound by the limitation provided under the Act and the Rules. It was not open to the appellant to claim that even though the period of limitation was providedunder the statute for refund, the application filed by it should be processed and considered under the general law of limitation
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The New Theaters (Carnatic Talkies) Ltd., Coimbatore Vs. N. Vajrapani Naidu | now stood modified. Whereas the original s. 9 (1) provided for the making of an application by the tenant within a specified period to the court for an order directing the landlord to sell the land for a price to be fixed by the court, and the court was required to fix the price according to the lowest market value prevalent within seven years preceding the date of the order, and to order, within a period to be determined by the court, the tenant to pay into court or otherwise as directed the price so fixed, the amended s. 9 (1) is divided into two clauses. Clause (a) entitles the tenant, within an identical period, to apply to the court for an order requiring the landlord to sell, for a price to be fixed by the court, the whole, or part of, the ex tent of the land specified in the application. The court can now direct the sale of a part only of the land mentioned in the application and is not compelled to pass an order in respect of the entire land. Clause (b) provides that the court will fi rst decide the minimum extent of the land necessary for convenient enjoyment by the tenant, and thereafter the court will fix the price of such minimum extent of land or of the extent of the land specified in the application, whichever is less. Furthermore, the price is to be the average market value of the three years immediately preceding the date of the order. We are clear in our mind that if the suit was pending on the date when the amendments in the principal Act were brought into force, the amended provisions of the Act will govern the disposal of the suit.Now, the appellant had already filed C.M.P. No. 1835 of 1958 praying for directions under s. 9 for the sale of the site. On that application Panchapakesa Iyer J. had passed an order dated July 28, 1958 holding the appellant entitled to purchase the site on paying the full market value current on that date, and had directed the trial court to appoint a Commissioner to fix the value of the site. The order did not dispose of the application and the suit, for under the original s. (3) the statute contemplated an order by the court, after it was satisfied that the tenant had paid the price determined by it, directing the conveyance of the land by the landlord to the tenant. It was only after such order was made that the application and the suit would stand concluded. In Gnanaprakasam and Another v. Mahboob Bi and others, a learned Single Judge of the Madras High Court held that even where the original court had made an order fixing the price of the land and directing its payment by the tenant, the application filed by the tenant could not be regarded as at an end so long as final orders directing execution of conveyance and delivery of possession were not passed. The stage for passing such order had not been reached yet when the principal Act was amended by Act XIII of 1960. The suit continued pending on the date when the amendments took effect. And consequently, it was now governed by the provisions of the amended s.9. We may reiterate that the order dated July 28, 1958 did not complete the proceeding in the suit. It constituted one stage only in the suit, and inasmuch as the suit was now to be disposed of in accordance with the amended statute the incomplete proceeding had to give way to the operation of the amended statute. As the scheme under the original section stood superseded by the scheme enacted under the amended sections the order of July 2 8, 1958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the court in order to dispose of the suit.The respondent, therefore, filed C.M.P. No. 7241 of 1960 praying for a review of the order dated July 28, 1 958 in the light of the amended s.9. In other words, the court was now called upon to dispose of the application of the appellant, not in the light of the provisions of the original s.9 but on the basis of the provisions of the amend ed s.9. We are of opinion that the trial court is right in taking the view, and the High Court in affirming it, that C.M.P. No. 1883 of 1968 and the suit had to be disposed of on the basis of the provisions of the amended s.9. The contention to the contrary raised by the appellant must fail.7. We are also unable to accept the other contention of the appellant that the respondent should have invoked the benefit of the amended s. 9 in the appeal pending in this Court, and that not having done so it was not open to the respondent to apply for relief in the court below after the appeal had been disposed of by this Court. It is apparent that the scope of the appeal filed in this Court was restricted to the validity of s.9 and s. 12 of the unamended Madras City Tenants Protection Act. It must be remembered that the order of Panchapakesa Iyer J, when gave rise to that appeal, was made before the Act was amended in 1960, and this Court concerned itself solely with the validity of the unamended statutory provisions. In fact, perusal of its judgment will show that this Court declined to consider the operation of the amendments brought about in 1960. In the circumstances, it is not possible to urge that the respondent might, or ought to, have insisted on relief under the amended s.9 in the appeal pending in this Court. It was, therefore, open to the respondent after the disposal of the appeal by this Court to apply to the court below for an order in terms of the amended s.9. | 0[ds]We are clear in our mind that if the suit was pending on the date when the amendments in the principal Act were brought into force, the amended provisions of the Act will govern the disposal of the suit.Now, the appellant had already filed C.M.P. No. 1835 of 1958 praying for directions under s. 9 for the sale of the site. On that application Panchapakesa Iyer J. had passed an order dated July 28, 1958 holding the appellant entitled to purchase the site on paying the full market value current on that date, and had directed the trial court to appoint a Commissioner to fix the value of the site. The order did not dispose of the application and the suit, for under the original s. (3) the statute contemplated an order by the court, after it was satisfied that the tenant had paid the price determined by it, directing the conveyance of the land by the landlord to the tenant. It was only after such order was made that the application and the suit would standthe scheme under the original section stood superseded by the scheme enacted under the amended sections the order of July 2 8, 1958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the court in order to dispose of the suit.The respondent, therefore, filed C.M.P. No. 7241 of 1960 praying for a review of the order dated July 28, 1 958 in the light of the amended s.9. In other words, the court was now called upon to dispose of the application of the appellant, not in the light of the provisions of the original s.9 but on the basis of the provisions of the amend ed s.9. We are of opinion that the trial court is right in taking the view, and the High Court in affirming it, that C.M.P. No. 1883 of 1968 and the suit had to be disposed of on the basis of the provisions of the amended s.9. The contention to the contrary raised by the appellant must fail.7. We are also unable to accept the other contention of the appellant that the respondent should have invoked the benefit of the amended s. 9 in the appeal pending in this Court, and that not having done so it was not open to the respondent to apply for relief in the court below after the appeal had been disposed of by this Court. It is apparent that the scope of the appeal filed in this Court was restricted to the validity of s.9 and s. 12 of the unamended Madras City Tenants Protection Act. It must be remembered that the order of Panchapakesa Iyer J, when gave rise to that appeal, was made before the Act was amended in 1960, and this Court concerned itself solely with the validity of the unamended statutory provisions. In fact, perusal of its judgment will show that this Court declined to consider the operation of the amendments brought about in 1960. In the circumstances, it is not possible to urge that the respondent might, or ought to, have insisted on relief under the amended s.9 in the appeal pending in this Court. It was, therefore, open to the respondent after the disposal of the appeal by this Court to apply to the court below for an order in terms of the amended s.9. | 0 | 3,460 | 615 | ### 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:
now stood modified. Whereas the original s. 9 (1) provided for the making of an application by the tenant within a specified period to the court for an order directing the landlord to sell the land for a price to be fixed by the court, and the court was required to fix the price according to the lowest market value prevalent within seven years preceding the date of the order, and to order, within a period to be determined by the court, the tenant to pay into court or otherwise as directed the price so fixed, the amended s. 9 (1) is divided into two clauses. Clause (a) entitles the tenant, within an identical period, to apply to the court for an order requiring the landlord to sell, for a price to be fixed by the court, the whole, or part of, the ex tent of the land specified in the application. The court can now direct the sale of a part only of the land mentioned in the application and is not compelled to pass an order in respect of the entire land. Clause (b) provides that the court will fi rst decide the minimum extent of the land necessary for convenient enjoyment by the tenant, and thereafter the court will fix the price of such minimum extent of land or of the extent of the land specified in the application, whichever is less. Furthermore, the price is to be the average market value of the three years immediately preceding the date of the order. We are clear in our mind that if the suit was pending on the date when the amendments in the principal Act were brought into force, the amended provisions of the Act will govern the disposal of the suit.Now, the appellant had already filed C.M.P. No. 1835 of 1958 praying for directions under s. 9 for the sale of the site. On that application Panchapakesa Iyer J. had passed an order dated July 28, 1958 holding the appellant entitled to purchase the site on paying the full market value current on that date, and had directed the trial court to appoint a Commissioner to fix the value of the site. The order did not dispose of the application and the suit, for under the original s. (3) the statute contemplated an order by the court, after it was satisfied that the tenant had paid the price determined by it, directing the conveyance of the land by the landlord to the tenant. It was only after such order was made that the application and the suit would stand concluded. In Gnanaprakasam and Another v. Mahboob Bi and others, a learned Single Judge of the Madras High Court held that even where the original court had made an order fixing the price of the land and directing its payment by the tenant, the application filed by the tenant could not be regarded as at an end so long as final orders directing execution of conveyance and delivery of possession were not passed. The stage for passing such order had not been reached yet when the principal Act was amended by Act XIII of 1960. The suit continued pending on the date when the amendments took effect. And consequently, it was now governed by the provisions of the amended s.9. We may reiterate that the order dated July 28, 1958 did not complete the proceeding in the suit. It constituted one stage only in the suit, and inasmuch as the suit was now to be disposed of in accordance with the amended statute the incomplete proceeding had to give way to the operation of the amended statute. As the scheme under the original section stood superseded by the scheme enacted under the amended sections the order of July 2 8, 1958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the court in order to dispose of the suit.The respondent, therefore, filed C.M.P. No. 7241 of 1960 praying for a review of the order dated July 28, 1 958 in the light of the amended s.9. In other words, the court was now called upon to dispose of the application of the appellant, not in the light of the provisions of the original s.9 but on the basis of the provisions of the amend ed s.9. We are of opinion that the trial court is right in taking the view, and the High Court in affirming it, that C.M.P. No. 1883 of 1968 and the suit had to be disposed of on the basis of the provisions of the amended s.9. The contention to the contrary raised by the appellant must fail.7. We are also unable to accept the other contention of the appellant that the respondent should have invoked the benefit of the amended s. 9 in the appeal pending in this Court, and that not having done so it was not open to the respondent to apply for relief in the court below after the appeal had been disposed of by this Court. It is apparent that the scope of the appeal filed in this Court was restricted to the validity of s.9 and s. 12 of the unamended Madras City Tenants Protection Act. It must be remembered that the order of Panchapakesa Iyer J, when gave rise to that appeal, was made before the Act was amended in 1960, and this Court concerned itself solely with the validity of the unamended statutory provisions. In fact, perusal of its judgment will show that this Court declined to consider the operation of the amendments brought about in 1960. In the circumstances, it is not possible to urge that the respondent might, or ought to, have insisted on relief under the amended s.9 in the appeal pending in this Court. It was, therefore, open to the respondent after the disposal of the appeal by this Court to apply to the court below for an order in terms of the amended s.9.
### Response:
0
### Explanation:
We are clear in our mind that if the suit was pending on the date when the amendments in the principal Act were brought into force, the amended provisions of the Act will govern the disposal of the suit.Now, the appellant had already filed C.M.P. No. 1835 of 1958 praying for directions under s. 9 for the sale of the site. On that application Panchapakesa Iyer J. had passed an order dated July 28, 1958 holding the appellant entitled to purchase the site on paying the full market value current on that date, and had directed the trial court to appoint a Commissioner to fix the value of the site. The order did not dispose of the application and the suit, for under the original s. (3) the statute contemplated an order by the court, after it was satisfied that the tenant had paid the price determined by it, directing the conveyance of the land by the landlord to the tenant. It was only after such order was made that the application and the suit would standthe scheme under the original section stood superseded by the scheme enacted under the amended sections the order of July 2 8, 1958 stood aborted and pursuant to the amended section fresh proceedings had to be taken by the court in order to dispose of the suit.The respondent, therefore, filed C.M.P. No. 7241 of 1960 praying for a review of the order dated July 28, 1 958 in the light of the amended s.9. In other words, the court was now called upon to dispose of the application of the appellant, not in the light of the provisions of the original s.9 but on the basis of the provisions of the amend ed s.9. We are of opinion that the trial court is right in taking the view, and the High Court in affirming it, that C.M.P. No. 1883 of 1968 and the suit had to be disposed of on the basis of the provisions of the amended s.9. The contention to the contrary raised by the appellant must fail.7. We are also unable to accept the other contention of the appellant that the respondent should have invoked the benefit of the amended s. 9 in the appeal pending in this Court, and that not having done so it was not open to the respondent to apply for relief in the court below after the appeal had been disposed of by this Court. It is apparent that the scope of the appeal filed in this Court was restricted to the validity of s.9 and s. 12 of the unamended Madras City Tenants Protection Act. It must be remembered that the order of Panchapakesa Iyer J, when gave rise to that appeal, was made before the Act was amended in 1960, and this Court concerned itself solely with the validity of the unamended statutory provisions. In fact, perusal of its judgment will show that this Court declined to consider the operation of the amendments brought about in 1960. In the circumstances, it is not possible to urge that the respondent might, or ought to, have insisted on relief under the amended s.9 in the appeal pending in this Court. It was, therefore, open to the respondent after the disposal of the appeal by this Court to apply to the court below for an order in terms of the amended s.9.
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U. P. Bhumi Sudhar Nigam Limited Vs. Shiv Narain Gupta | he was asked to join the post by 31-10-1990. S.K. Sachdeva having failed to join the post, Shiv Narain Gupta represented before the Corp oration that he, being next on the merit panel, be considered for appointment to the post. When no action was taken by the Corporation for considerable time, Shiv Narain Gupta filed a writ petition under Article 226 of the Constitution of India before the Lucknow Bench of the Allahabad High Court. The writ petition was allowed by a learned Single Judge of the High Court and a mandamus was issued to the Corporation to appoint Shiv Narain Gupta to the post of Financial Controller. This appeal by the Corporation is against the judgment of the High Court. 3. Mr Gopal Subramaniam, learned counsel for the appellant has contended that a candidate included in the merit list has no indefeasible right to appointment even if a vacancy exists. The Corporation, according to him, was under no legal obligation to fill the post simply because a panel of the selected candidates had been prepared by the selection committee. It was further pointed out by the learned counsel that due to changed circumstances it was no longer viable for the Corporation to fill the post of the Financial Controller. We see considerable force in the contentions of learned counsel for the appellant. 4. A Constitution Bench of this Court in Shankarsan Dash v. Union of India1 referred to the earlier judgments of this Court in State of Haryana v. Subash Chander Marwaha2, Neelima Shangla v. State of Haryana3 and Jatinder Kumar v. State of Punjab4 and laid down the law on the subject in the following terms: (SCC pp. 50-5 1, para 7) " It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha2, Neelima Shangla v. State of Haryana3 or Jatinder Kumar v. State of Punjab4." * 5. A Division Bench of this Court in Babita Prasad v. State of Bihar5, where one of us (Dr A.S. Anand, J.) speaking for the Bench dealt extensively with the rights of the candidates, included in a "merit list", to an appointment. This Court following the Constitution Bench in Shank arsan Dash case 1 held asunder:(SCC pp. 280-81, para 21) "Thus, the Constitution Bench while referring with approval the judgment in Subash Chander Marwaha case2 in unequivocal terms reiterated the settled law that the existence of vacancies does not confer a legal right on a selected candidate to be appointed unless the relevant rules provide specifically to the contrary. The State, of course, must all through act bona fide and not arbitrarily both in making appointments and in not filling the existing vacancies." * 6. We may briefly notice the factual stand taken by the Corporation before the High Court. It is stated that in January 1990 the World Bank assessed the possibility of entrusting a Reclamation Project to the Corporation. Keeping in view the proposed project the Corporation advertised for the post of Financial Controller. At the time when the panel was prepared by the selection committee, the project had not started but since the candidate at number one of the merit panel, Sunil Kumar Sachdeva, was in addition qualified Company Secretary, it was thought appropriate by the Corporation to offer the appointment to him. By December 1990 it transpired that the project was not likely to start at least for a period of two/three years. The World Bank Mission visited India in July 1991 and conveyed that the setting up of the project was likely to be delayed considerably. Under these circumstances, the Board of Directors of the Corporation decided to abolish the post of Financial Controller till further projects are made available and entrusted to the Corporation. It was contended by Mr Gopal Subramaniam that in the facts and circumstances of this case, the Corporation acted bona fide and was justified in not offering the appointment to the respondent. We agree with the learned counsel. We are of the view that the High Court fell into patent error in issuing the mandamus in the facts and circumstances of this case. This Court has authoritatively laid down that even if a vacancy is available and the employer bona fide declines to make an appointment, the candidate on the select list has no right whatsoever to claim appointment. In the present case the post was abolished by the Board of Directors in the year 1991. Shiv Narain Gupt a in fact challenged before the High Court the action of the Corporation in abolishing the post. Neither the facts of this case nor the law on the subject warranted any interference by the High Court in the writ petition filed by Shiv Narain Gupta . The Constitution Bench judgment in Shankarsan Dash case1 was cited before the learned Single Judge of the High Court. We are constrained to say that the learned Judge failed to appreciate the binding ratio of the said judgment. | 1[ds]. It wascontended by Mr Gopal Subramaniam that in the facts and circumstances of this case, the Corporation acted bona fide and was justified in not offering the appointment to the respondent. We agree with the learned counsel. We are of the view that the High Court fell into patent error in issuing the mandamus in the facts and circumstances of this case. This Court has authoritatively laid down that even if a vacancy is available and the employer bona fide declines to make an appointment, the candidate on the select list has no right whatsoever to claim appointment. In the present case the post was abolished by the Board of Directors in the year 1991. Shiv Narain Gupt a in fact challenged before the High Court the action of the Corporation in abolishing the post. Neither the facts of this case nor the law on the subject warranted any interference by the High Court in the writ petition filed by Shiv Narain Gupta . The Constitution Bench judgment in Shankarsan Dash case1 was cited before the learned Single Judge of the High Court. We are constrained to say that the learned Judge failed to appreciate the binding ratio of the said judgment. | 1 | 1,209 | 217 | ### 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:
he was asked to join the post by 31-10-1990. S.K. Sachdeva having failed to join the post, Shiv Narain Gupta represented before the Corp oration that he, being next on the merit panel, be considered for appointment to the post. When no action was taken by the Corporation for considerable time, Shiv Narain Gupta filed a writ petition under Article 226 of the Constitution of India before the Lucknow Bench of the Allahabad High Court. The writ petition was allowed by a learned Single Judge of the High Court and a mandamus was issued to the Corporation to appoint Shiv Narain Gupta to the post of Financial Controller. This appeal by the Corporation is against the judgment of the High Court. 3. Mr Gopal Subramaniam, learned counsel for the appellant has contended that a candidate included in the merit list has no indefeasible right to appointment even if a vacancy exists. The Corporation, according to him, was under no legal obligation to fill the post simply because a panel of the selected candidates had been prepared by the selection committee. It was further pointed out by the learned counsel that due to changed circumstances it was no longer viable for the Corporation to fill the post of the Financial Controller. We see considerable force in the contentions of learned counsel for the appellant. 4. A Constitution Bench of this Court in Shankarsan Dash v. Union of India1 referred to the earlier judgments of this Court in State of Haryana v. Subash Chander Marwaha2, Neelima Shangla v. State of Haryana3 and Jatinder Kumar v. State of Punjab4 and laid down the law on the subject in the following terms: (SCC pp. 50-5 1, para 7) " It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha2, Neelima Shangla v. State of Haryana3 or Jatinder Kumar v. State of Punjab4." * 5. A Division Bench of this Court in Babita Prasad v. State of Bihar5, where one of us (Dr A.S. Anand, J.) speaking for the Bench dealt extensively with the rights of the candidates, included in a "merit list", to an appointment. This Court following the Constitution Bench in Shank arsan Dash case 1 held asunder:(SCC pp. 280-81, para 21) "Thus, the Constitution Bench while referring with approval the judgment in Subash Chander Marwaha case2 in unequivocal terms reiterated the settled law that the existence of vacancies does not confer a legal right on a selected candidate to be appointed unless the relevant rules provide specifically to the contrary. The State, of course, must all through act bona fide and not arbitrarily both in making appointments and in not filling the existing vacancies." * 6. We may briefly notice the factual stand taken by the Corporation before the High Court. It is stated that in January 1990 the World Bank assessed the possibility of entrusting a Reclamation Project to the Corporation. Keeping in view the proposed project the Corporation advertised for the post of Financial Controller. At the time when the panel was prepared by the selection committee, the project had not started but since the candidate at number one of the merit panel, Sunil Kumar Sachdeva, was in addition qualified Company Secretary, it was thought appropriate by the Corporation to offer the appointment to him. By December 1990 it transpired that the project was not likely to start at least for a period of two/three years. The World Bank Mission visited India in July 1991 and conveyed that the setting up of the project was likely to be delayed considerably. Under these circumstances, the Board of Directors of the Corporation decided to abolish the post of Financial Controller till further projects are made available and entrusted to the Corporation. It was contended by Mr Gopal Subramaniam that in the facts and circumstances of this case, the Corporation acted bona fide and was justified in not offering the appointment to the respondent. We agree with the learned counsel. We are of the view that the High Court fell into patent error in issuing the mandamus in the facts and circumstances of this case. This Court has authoritatively laid down that even if a vacancy is available and the employer bona fide declines to make an appointment, the candidate on the select list has no right whatsoever to claim appointment. In the present case the post was abolished by the Board of Directors in the year 1991. Shiv Narain Gupt a in fact challenged before the High Court the action of the Corporation in abolishing the post. Neither the facts of this case nor the law on the subject warranted any interference by the High Court in the writ petition filed by Shiv Narain Gupta . The Constitution Bench judgment in Shankarsan Dash case1 was cited before the learned Single Judge of the High Court. We are constrained to say that the learned Judge failed to appreciate the binding ratio of the said judgment.
### Response:
1
### Explanation:
. It wascontended by Mr Gopal Subramaniam that in the facts and circumstances of this case, the Corporation acted bona fide and was justified in not offering the appointment to the respondent. We agree with the learned counsel. We are of the view that the High Court fell into patent error in issuing the mandamus in the facts and circumstances of this case. This Court has authoritatively laid down that even if a vacancy is available and the employer bona fide declines to make an appointment, the candidate on the select list has no right whatsoever to claim appointment. In the present case the post was abolished by the Board of Directors in the year 1991. Shiv Narain Gupt a in fact challenged before the High Court the action of the Corporation in abolishing the post. Neither the facts of this case nor the law on the subject warranted any interference by the High Court in the writ petition filed by Shiv Narain Gupta . The Constitution Bench judgment in Shankarsan Dash case1 was cited before the learned Single Judge of the High Court. We are constrained to say that the learned Judge failed to appreciate the binding ratio of the said judgment.
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Avneesh Chandan Gadgil & Anr Vs. Oriental Bank of Commerce & Ors | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 16.02.2016 passed by the High Court of Delhi in Writ Petition (C) No.4207 of 2015 by which the High Court has allowed the said appeal preferred by the respondent No.1 herein - Bank and has quashed and set aside the order passed by the Debts Recovery Appellate Tribunal (hereinafter referred to as DRAT) by which the learned DRAT quashed and set aside the order passed by the Debts Recovery Tribunal condoning the delay in preferring the appeal under Section 30 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the Act, 1993), the original respondent has preferred the present appeal. 2. The issue involved in the present appeal is in a very narrow compass. 3. The short question, which is posed for consideration before this Court is whether Section 5 of the Limitation Act shall be applicable to the appeal against the order of Recovery Officer under Section 30 of the Act, 1993? 4. It is not in dispute that there was a delay of 31 days in the appeal preferred by the respondent No.1 – Bank preferred against the order of Recovery Officer. The Debts Recovery Tribunal condoned the delay by applying Section 5 of the Limitation Act, 1963. The DRAT set aside the order passed by the Debts Recovery Tribunal condoning the delay applying Section 5 of the Limitation Act observing that Section 5 of the Limitation Act shall not be applicable to the appeal under Section 30 of the Act, 1993 against the order passed by the Recovery Officer. By the impugned judgment and order, the High Court has set aside the order passed by the DRAT relying upon the decision of this Court in the case of A.R. Venugopal Alias R. Venugopal Vs. Jotheeswaran and Ors., (2016) 16 SCC 588. 5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court restoring the order passed by the Debts Recovery Tribunal condoning the delay applying Section 5 of the Limitation Act to the appeal under Section 30 of the Act, 1993, the original respondent – Bank has preferred the present appeal. 6. We have heard the learned counsel for the respective parties at length. 7. At the outset, it is required to be noted that the issue involved in the present appeal is now not res integra in view of the direct decision of this Court in the case of International Asset Reconstruction Company of India Limited Vs. Official Liquidator of Aldrich Pharmaceuticals Limited and Ors., (2017) 16 SCC 137 . Dealing with the appeal under Section 30 of the Act, 1993 after 2000 amendment, it is held that Section 5 of the limitation Act is specifically excluded so far as appeal under Section 30 of the Act, 1993 is concerned. While holding so, in paragraph 13, it is observed and held as under:- 13. The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The Appellate Tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery Officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery Officer therefore cannot be condoned by application of Section 5 of the Limitation Act. 8. At this stage, it is required to be noted that the decision of this Court in the case of A.R. Venugopal Alias R. Venugopal (supra), which has been relied upon by the High Court while passing the impugned judgment and order has been expressly overruled by this Court in the decision in the case of International Asset Reconstruction Company of India Limited (supra). 9. Thus, as per the law laid down by this Court in the aforesaid case and even otherwise considering Section 30 of the Act, 1993, we are also of the view that Section 5 of the Limitation Act shall not be applicable to the appeal against the order of Recovery Officer as provided under Section 30 of the Act, 1993. Therefore, the High Court has committed a grave error in quashing and setting aside the order passed by the DRAT and in restoring the order passed by the Debts Recovery Tribunal condoning the delay in preferring the appeal under Section 30 by applying Section 5 of the Limitation Act. | 1[ds]7. At the outset, it is required to be noted that the issue involved in the present appeal is now not res integra in view of the direct decision of this Court in the case of International Asset Reconstruction Company of India Limited Vs. Official Liquidator of Aldrich Pharmaceuticals Limited and Ors., (2017) 16 SCC 137 . Dealing with the appeal under Section 30 of the Act, 1993 after 2000 amendment, it is held that Section 5 of the limitation Act is specifically excluded so far as appeal under Section 30 of the Act, 1993 is concerned. While holding so, in paragraph 13, it is observed and held as under:-13. The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The Appellate Tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery Officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery Officer therefore cannot be condoned by application of Section 5 of the Limitation Act.8. At this stage, it is required to be noted that the decision of this Court in the case of A.R. Venugopal Alias R. Venugopal (supra), which has been relied upon by the High Court while passing the impugned judgment and order has been expressly overruled by this Court in the decision in the case of International Asset Reconstruction Company of India Limited (supra).9. Thus, as per the law laid down by this Court in the aforesaid case and even otherwise considering Section 30 of the Act, 1993, we are also of the view that Section 5 of the Limitation Act shall not be applicable to the appeal against the order of Recovery Officer as provided under Section 30 of the Act, 1993. Therefore, the High Court has committed a grave error in quashing and setting aside the order passed by the DRAT and in restoring the order passed by the Debts Recovery Tribunal condoning the delay in preferring the appeal under Section 30 by applying Section 5 of the Limitation Act. | 1 | 941 | 518 | ### 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:
M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 16.02.2016 passed by the High Court of Delhi in Writ Petition (C) No.4207 of 2015 by which the High Court has allowed the said appeal preferred by the respondent No.1 herein - Bank and has quashed and set aside the order passed by the Debts Recovery Appellate Tribunal (hereinafter referred to as DRAT) by which the learned DRAT quashed and set aside the order passed by the Debts Recovery Tribunal condoning the delay in preferring the appeal under Section 30 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as the Act, 1993), the original respondent has preferred the present appeal. 2. The issue involved in the present appeal is in a very narrow compass. 3. The short question, which is posed for consideration before this Court is whether Section 5 of the Limitation Act shall be applicable to the appeal against the order of Recovery Officer under Section 30 of the Act, 1993? 4. It is not in dispute that there was a delay of 31 days in the appeal preferred by the respondent No.1 – Bank preferred against the order of Recovery Officer. The Debts Recovery Tribunal condoned the delay by applying Section 5 of the Limitation Act, 1963. The DRAT set aside the order passed by the Debts Recovery Tribunal condoning the delay applying Section 5 of the Limitation Act observing that Section 5 of the Limitation Act shall not be applicable to the appeal under Section 30 of the Act, 1993 against the order passed by the Recovery Officer. By the impugned judgment and order, the High Court has set aside the order passed by the DRAT relying upon the decision of this Court in the case of A.R. Venugopal Alias R. Venugopal Vs. Jotheeswaran and Ors., (2016) 16 SCC 588. 5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court restoring the order passed by the Debts Recovery Tribunal condoning the delay applying Section 5 of the Limitation Act to the appeal under Section 30 of the Act, 1993, the original respondent – Bank has preferred the present appeal. 6. We have heard the learned counsel for the respective parties at length. 7. At the outset, it is required to be noted that the issue involved in the present appeal is now not res integra in view of the direct decision of this Court in the case of International Asset Reconstruction Company of India Limited Vs. Official Liquidator of Aldrich Pharmaceuticals Limited and Ors., (2017) 16 SCC 137 . Dealing with the appeal under Section 30 of the Act, 1993 after 2000 amendment, it is held that Section 5 of the limitation Act is specifically excluded so far as appeal under Section 30 of the Act, 1993 is concerned. While holding so, in paragraph 13, it is observed and held as under:- 13. The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The Appellate Tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery Officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery Officer therefore cannot be condoned by application of Section 5 of the Limitation Act. 8. At this stage, it is required to be noted that the decision of this Court in the case of A.R. Venugopal Alias R. Venugopal (supra), which has been relied upon by the High Court while passing the impugned judgment and order has been expressly overruled by this Court in the decision in the case of International Asset Reconstruction Company of India Limited (supra). 9. Thus, as per the law laid down by this Court in the aforesaid case and even otherwise considering Section 30 of the Act, 1993, we are also of the view that Section 5 of the Limitation Act shall not be applicable to the appeal against the order of Recovery Officer as provided under Section 30 of the Act, 1993. Therefore, the High Court has committed a grave error in quashing and setting aside the order passed by the DRAT and in restoring the order passed by the Debts Recovery Tribunal condoning the delay in preferring the appeal under Section 30 by applying Section 5 of the Limitation Act.
### Response:
1
### Explanation:
7. At the outset, it is required to be noted that the issue involved in the present appeal is now not res integra in view of the direct decision of this Court in the case of International Asset Reconstruction Company of India Limited Vs. Official Liquidator of Aldrich Pharmaceuticals Limited and Ors., (2017) 16 SCC 137 . Dealing with the appeal under Section 30 of the Act, 1993 after 2000 amendment, it is held that Section 5 of the limitation Act is specifically excluded so far as appeal under Section 30 of the Act, 1993 is concerned. While holding so, in paragraph 13, it is observed and held as under:-13. The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The Appellate Tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of the Act. The proceedings before the Recovery Officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery Officer therefore cannot be condoned by application of Section 5 of the Limitation Act.8. At this stage, it is required to be noted that the decision of this Court in the case of A.R. Venugopal Alias R. Venugopal (supra), which has been relied upon by the High Court while passing the impugned judgment and order has been expressly overruled by this Court in the decision in the case of International Asset Reconstruction Company of India Limited (supra).9. Thus, as per the law laid down by this Court in the aforesaid case and even otherwise considering Section 30 of the Act, 1993, we are also of the view that Section 5 of the Limitation Act shall not be applicable to the appeal against the order of Recovery Officer as provided under Section 30 of the Act, 1993. Therefore, the High Court has committed a grave error in quashing and setting aside the order passed by the DRAT and in restoring the order passed by the Debts Recovery Tribunal condoning the delay in preferring the appeal under Section 30 by applying Section 5 of the Limitation Act.
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State Rep. by Inspector of Police, Tamil Nadu Vs. Rajendran & Others | why A2 would ask the deceased about the whereabouts of PW 5. Evidence shows that the deceased answered by stating that PW5 has gone to Madras. High Court was of the view that some material should have been brought on record to show that PW 5 was not actually in town and had gone to Madras or any other place. The High Court thereafter came to the conclusion which according to us, is totally absurd that it was not possible to infer from the evidence of PW5 that he had gone to Madras and, therefore, the very question by A2 to the deceased and the answer that came out appears to be artificial. Probably, according to the High Court the prosecution wanted to have a platform from which they wanted to develop their case. It was also found that there was considerable delay in sending Ex.P1 to P7 to the court.It was therefore held that the credibility of Ex.P1 to P7 were in serious doubt and therefore the prosecution case was vulnerable.Additionally, it was held that certain partly digested food articles were found in the stomach of the deceased. According to the High Court, evidence should have been led to show as to at what point of time the deceased took his last meal.It was also held that the evidence of PWs 1 & 3 shows that they could not have been present at the place of occurrence as the investigating officer had not examined anybody to conclude that PW 1 & 3 were present at the spot of occurrence. It was also noted that in the inquest report, the name of PW 3 was not there and, therefore, he was not present. Accordingly, as aforesaid, the acquittal was directed. 4. Learned counsel for the State submitted that the conclusions of the High Court are not only contrary to evidence on record but also are based on surmises and conjectures. There was really no delay in sending the FIR and/or inquest report to the court. The suggestions given by the accused probabilised the presence of the eye witnesses. It was indirectly accepted in the cross examination that A1, A3 and A4 repeatedly stabbed the deceased with velsticks but the suggestion was that the witnesses had not counted the number of times the stabs were given by A1, A3 and A4. The reason why the documents reached magistrates court late has been explained by PW 8 whose evidence has not at all being discussed. So far as the inquest report is concerned, it is not necessary that names of all the witnesses should be mentioned. Even otherwise the name of PW 1 has been specifically noted. That was sufficient. So far as the partly digested food is concerned, the doctor has categorically stated that in the absence of the time when the last meal was taken, it could not have been inferred. The doctor has categorically stated that the time of death was the time as stated by the eye witnesses.5. In response, learned counsel for the respondent submitted that there was partly digested food as found by the doctor PW 10. The inquest report does not show the presence of PW 3, so, in any event PW1 whose name has been stated becomes the solitary witness. The foundational facts are in doubt and the view taken by the High Court is a possible view and so there is no scope for interference as the High Court has considered the totality of the circumstances and there was manipulation of times.6. To begin with, we find the High Courts judgment is full of abrupt conclusions and some times contrary to the evidence on record. The High Court has considered certain factors to be material whereas in fact they are not so. For example the non-mention of the name of the deceased in the company of PW 5 in Ex.P5 has been considered to be a vital omission. No basis for such a conclusion has been indicated. There was nothing to discard the evidence of the eye witnesses on the ground that material should have been shown to show that PW 5 was actually not in town and had gone to Madras or any other place. It is surprising that the High Court rests its view on a totally unfounded conclusion that the question put by A2 and the answer by PW5 appear to be artificial. So far as the delay in sending Ex.P1 and P2 is concerned, the evidence of PW 8 is clear and cogent as to why the document reached the court late. There is not even any discussion as to why the explanation given was not acceptable. So far as the presence of partly digested food is concerned, the High Court came to a conclusion on purely surmises that it can be reasonably presumed that the deceased had taken food before the occurrence had taken place and the presence of food particles postponed the time of occurrence. It again came to an abrupt and absurd conclusion that probably the time of occurrence could have been fixed after 7.30 or 8 PM on the day in question. The High Court came to another erroneous conclusion that PW 8 had carried Ex.P18. The material on record clearly shows that it is not really so. The conclusion that the investigating officer should have examined somebody else to conclude that PWs.1 and 3 were present at the scene of occurrence is legally unsupportable. As rightly submitted, the inquest report need not contain the names of all the witnesses. In any event the name of PW 1 was stated. There is no discussion as to in what manner the evidence of PWs.1 & 3 suffered from any infirmity. The High Court seems to have been obsessed with the idea that there was alleged delay in dispatch, casting doubt on authenticity of the FIR, the inquest report. Conclusions arrived at are totally without foundation. The High Courts order is indefensible and is set aside. 7. | 1[ds]we find the High Courts judgment is full of abrupt conclusions and some times contrary to the evidence on record. The High Court has considered certain factors to be material whereas in fact they are not so. For example the non-mention of the name of the deceased in the company of PW 5 in Ex.P5 has been considered to be a vital omission. No basis for such a conclusion has been indicated. There was nothing to discard the evidence of the eye witnesses on the ground that material should have been shown to show that PW 5 was actually not in town and had gone to Madras or any other place. It is surprising that the High Court rests its view on a totally unfounded conclusion that the question put by A2 and the answer by PW5 appear to be artificial. So far as the delay in sending Ex.P1 and P2 is concerned, the evidence of PW 8 is clear and cogent as to why the document reached the court late. There is not even any discussion as to why the explanation given was not acceptable. So far as the presence of partly digested food is concerned, the High Court came to a conclusion on purely surmises that it can be reasonably presumed that the deceased had taken food before the occurrence had taken place and the presence of food particles postponed the time of occurrence. It again came to an abrupt and absurd conclusion that probably the time of occurrence could have been fixed after 7.30 or 8 PM on the day in question. The High Court came to another erroneous conclusion that PW 8 had carried Ex.P18. The material on record clearly shows that it is not really so. The conclusion that the investigating officer should have examined somebody else to conclude that PWs.1 and 3 were present at the scene of occurrence is legally unsupportable. As rightly submitted, the inquest report need not contain the names of all the witnesses. In any event the name of PW 1 was stated. There is no discussion as to in what manner the evidence of PWs.1 & 3 suffered from any infirmity. The High Court seems to have been obsessed with the idea that there was alleged delay in dispatch, casting doubt on authenticity of the FIR, the inquest report. Conclusions arrived at are totally without foundation. The High Courts order is indefensible and is set aside. | 1 | 2,324 | 435 | ### 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:
why A2 would ask the deceased about the whereabouts of PW 5. Evidence shows that the deceased answered by stating that PW5 has gone to Madras. High Court was of the view that some material should have been brought on record to show that PW 5 was not actually in town and had gone to Madras or any other place. The High Court thereafter came to the conclusion which according to us, is totally absurd that it was not possible to infer from the evidence of PW5 that he had gone to Madras and, therefore, the very question by A2 to the deceased and the answer that came out appears to be artificial. Probably, according to the High Court the prosecution wanted to have a platform from which they wanted to develop their case. It was also found that there was considerable delay in sending Ex.P1 to P7 to the court.It was therefore held that the credibility of Ex.P1 to P7 were in serious doubt and therefore the prosecution case was vulnerable.Additionally, it was held that certain partly digested food articles were found in the stomach of the deceased. According to the High Court, evidence should have been led to show as to at what point of time the deceased took his last meal.It was also held that the evidence of PWs 1 & 3 shows that they could not have been present at the place of occurrence as the investigating officer had not examined anybody to conclude that PW 1 & 3 were present at the spot of occurrence. It was also noted that in the inquest report, the name of PW 3 was not there and, therefore, he was not present. Accordingly, as aforesaid, the acquittal was directed. 4. Learned counsel for the State submitted that the conclusions of the High Court are not only contrary to evidence on record but also are based on surmises and conjectures. There was really no delay in sending the FIR and/or inquest report to the court. The suggestions given by the accused probabilised the presence of the eye witnesses. It was indirectly accepted in the cross examination that A1, A3 and A4 repeatedly stabbed the deceased with velsticks but the suggestion was that the witnesses had not counted the number of times the stabs were given by A1, A3 and A4. The reason why the documents reached magistrates court late has been explained by PW 8 whose evidence has not at all being discussed. So far as the inquest report is concerned, it is not necessary that names of all the witnesses should be mentioned. Even otherwise the name of PW 1 has been specifically noted. That was sufficient. So far as the partly digested food is concerned, the doctor has categorically stated that in the absence of the time when the last meal was taken, it could not have been inferred. The doctor has categorically stated that the time of death was the time as stated by the eye witnesses.5. In response, learned counsel for the respondent submitted that there was partly digested food as found by the doctor PW 10. The inquest report does not show the presence of PW 3, so, in any event PW1 whose name has been stated becomes the solitary witness. The foundational facts are in doubt and the view taken by the High Court is a possible view and so there is no scope for interference as the High Court has considered the totality of the circumstances and there was manipulation of times.6. To begin with, we find the High Courts judgment is full of abrupt conclusions and some times contrary to the evidence on record. The High Court has considered certain factors to be material whereas in fact they are not so. For example the non-mention of the name of the deceased in the company of PW 5 in Ex.P5 has been considered to be a vital omission. No basis for such a conclusion has been indicated. There was nothing to discard the evidence of the eye witnesses on the ground that material should have been shown to show that PW 5 was actually not in town and had gone to Madras or any other place. It is surprising that the High Court rests its view on a totally unfounded conclusion that the question put by A2 and the answer by PW5 appear to be artificial. So far as the delay in sending Ex.P1 and P2 is concerned, the evidence of PW 8 is clear and cogent as to why the document reached the court late. There is not even any discussion as to why the explanation given was not acceptable. So far as the presence of partly digested food is concerned, the High Court came to a conclusion on purely surmises that it can be reasonably presumed that the deceased had taken food before the occurrence had taken place and the presence of food particles postponed the time of occurrence. It again came to an abrupt and absurd conclusion that probably the time of occurrence could have been fixed after 7.30 or 8 PM on the day in question. The High Court came to another erroneous conclusion that PW 8 had carried Ex.P18. The material on record clearly shows that it is not really so. The conclusion that the investigating officer should have examined somebody else to conclude that PWs.1 and 3 were present at the scene of occurrence is legally unsupportable. As rightly submitted, the inquest report need not contain the names of all the witnesses. In any event the name of PW 1 was stated. There is no discussion as to in what manner the evidence of PWs.1 & 3 suffered from any infirmity. The High Court seems to have been obsessed with the idea that there was alleged delay in dispatch, casting doubt on authenticity of the FIR, the inquest report. Conclusions arrived at are totally without foundation. The High Courts order is indefensible and is set aside. 7.
### Response:
1
### Explanation:
we find the High Courts judgment is full of abrupt conclusions and some times contrary to the evidence on record. The High Court has considered certain factors to be material whereas in fact they are not so. For example the non-mention of the name of the deceased in the company of PW 5 in Ex.P5 has been considered to be a vital omission. No basis for such a conclusion has been indicated. There was nothing to discard the evidence of the eye witnesses on the ground that material should have been shown to show that PW 5 was actually not in town and had gone to Madras or any other place. It is surprising that the High Court rests its view on a totally unfounded conclusion that the question put by A2 and the answer by PW5 appear to be artificial. So far as the delay in sending Ex.P1 and P2 is concerned, the evidence of PW 8 is clear and cogent as to why the document reached the court late. There is not even any discussion as to why the explanation given was not acceptable. So far as the presence of partly digested food is concerned, the High Court came to a conclusion on purely surmises that it can be reasonably presumed that the deceased had taken food before the occurrence had taken place and the presence of food particles postponed the time of occurrence. It again came to an abrupt and absurd conclusion that probably the time of occurrence could have been fixed after 7.30 or 8 PM on the day in question. The High Court came to another erroneous conclusion that PW 8 had carried Ex.P18. The material on record clearly shows that it is not really so. The conclusion that the investigating officer should have examined somebody else to conclude that PWs.1 and 3 were present at the scene of occurrence is legally unsupportable. As rightly submitted, the inquest report need not contain the names of all the witnesses. In any event the name of PW 1 was stated. There is no discussion as to in what manner the evidence of PWs.1 & 3 suffered from any infirmity. The High Court seems to have been obsessed with the idea that there was alleged delay in dispatch, casting doubt on authenticity of the FIR, the inquest report. Conclusions arrived at are totally without foundation. The High Courts order is indefensible and is set aside.
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Union of India & Ors Vs. Shri C.R. Madhava Murthy & Anr | anomaly and to fix their salaries at par with their juniors. Thereafter, the original writ petitioners preferred O.A. Nos. 813 & 814/2014 before the Central Administrative Tribunal, Bengaluru Bench, Bengaluru. By the common order dated 04.01.2016, the Tribunal rejected the said applications. Feeling aggrieved and dissatisfied with the common order dated 04.01.2016 passed by the Tribunal, the respondents herein preferred the present writ petitions before the High Court. On considering FR 22, which provides for stepping up of pay and the removal of anomaly by stepping up of pay of a senior on promotion drawing lesser pay than his junior, by the impugned common judgment and order the High Court has allowed the writ petitions and has directed the appellants herein to step up the pay of the respondents herein, keeping in view the pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. 2.2 Feeling aggrieved with the impugned common judgment and order passed by the High Court, the Union of India and others have preferred the present appeals. 3. Ms. Madhvi Divan, learned ASG, appearing on behalf of the appellants has vehemently submitted that while passing the impugned common judgment and order, the High Court has not at all appreciated and/or properly considered the ACP Scheme. 3.1 It is submitted that the respective original writ petitioners were already promoted to the post of Superintendent of Central Excise and Customs. It is submitted that once the respective writ petitioners were already granted the promotion, thereafter, there was no question of granting any stepping up of pay under the ACP Scheme. 3.2 It is submitted that the High Court has not at all appreciated the object and purpose of ACP Scheme. It is submitted that as per the catena of judgments of this Court and various High Courts, the purpose of the ACP Scheme/MACP Scheme is to relieve the frustration on account of stagnation and the Scheme does not involve the actual grant of promotional post to the employees, but to merely monetary benefits in the form of next higher grade subject to fulfilment of qualifications and eligibility criteria. It is submitted therefore that when in the present case the original writ petitioners were already promoted to the next higher post – Superintendent of Central Excise and Customs and they were placed in the appropriate pay scale of the promotional post, thereafter, there was no question of any stepping up in the pay. 4. Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances of the case, which has emerged from the impugned judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, it was a case of removal of anomaly by stepping up of pay of seniors on promotion drawing a less pay than their juniors. 5. The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under: - (22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior - (a) As a result of application of FR 22 -C. [Now FR 22 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1--4--1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided the in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely: - (a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre; (b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical; (c) The anomaly should be directly as a result of the application of FR--22--C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer. The orders refixing the pay of the senior officers I accordance with the above provisions shall be issued under FR-27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay. [G.I., M.F., 0.M. No.F.2 [78)--E.III (A)/66, dated the 4th February, 1966). 6. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for. | 0[ds]4. Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances of the case, which has emerged from the impugned judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, it was a case of removal of anomaly by stepping up of pay of seniors on promotion drawing a less pay than their juniors.5. The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under: -(22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior - (a) As a result of application of FR 22 -C. [Now FR 22 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1--4--1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided the in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely: -(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;(c) The anomaly should be directly as a result of the application of FR--22--C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer.The orders refixing the pay of the senior officers I accordance with the above provisions shall be issued under FR-27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.[G.I., M.F., 0.M. No.F.2 [78)--E.III (A)/66, dated the 4th February, 1966).6. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for. | 0 | 1,442 | 660 | ### 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:
anomaly and to fix their salaries at par with their juniors. Thereafter, the original writ petitioners preferred O.A. Nos. 813 & 814/2014 before the Central Administrative Tribunal, Bengaluru Bench, Bengaluru. By the common order dated 04.01.2016, the Tribunal rejected the said applications. Feeling aggrieved and dissatisfied with the common order dated 04.01.2016 passed by the Tribunal, the respondents herein preferred the present writ petitions before the High Court. On considering FR 22, which provides for stepping up of pay and the removal of anomaly by stepping up of pay of a senior on promotion drawing lesser pay than his junior, by the impugned common judgment and order the High Court has allowed the writ petitions and has directed the appellants herein to step up the pay of the respondents herein, keeping in view the pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. 2.2 Feeling aggrieved with the impugned common judgment and order passed by the High Court, the Union of India and others have preferred the present appeals. 3. Ms. Madhvi Divan, learned ASG, appearing on behalf of the appellants has vehemently submitted that while passing the impugned common judgment and order, the High Court has not at all appreciated and/or properly considered the ACP Scheme. 3.1 It is submitted that the respective original writ petitioners were already promoted to the post of Superintendent of Central Excise and Customs. It is submitted that once the respective writ petitioners were already granted the promotion, thereafter, there was no question of granting any stepping up of pay under the ACP Scheme. 3.2 It is submitted that the High Court has not at all appreciated the object and purpose of ACP Scheme. It is submitted that as per the catena of judgments of this Court and various High Courts, the purpose of the ACP Scheme/MACP Scheme is to relieve the frustration on account of stagnation and the Scheme does not involve the actual grant of promotional post to the employees, but to merely monetary benefits in the form of next higher grade subject to fulfilment of qualifications and eligibility criteria. It is submitted therefore that when in the present case the original writ petitioners were already promoted to the next higher post – Superintendent of Central Excise and Customs and they were placed in the appropriate pay scale of the promotional post, thereafter, there was no question of any stepping up in the pay. 4. Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances of the case, which has emerged from the impugned judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, it was a case of removal of anomaly by stepping up of pay of seniors on promotion drawing a less pay than their juniors. 5. The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under: - (22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior - (a) As a result of application of FR 22 -C. [Now FR 22 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1--4--1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided the in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely: - (a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre; (b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical; (c) The anomaly should be directly as a result of the application of FR--22--C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer. The orders refixing the pay of the senior officers I accordance with the above provisions shall be issued under FR-27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay. [G.I., M.F., 0.M. No.F.2 [78)--E.III (A)/66, dated the 4th February, 1966). 6. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for.
### Response:
0
### Explanation:
4. Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances of the case, which has emerged from the impugned judgment and order passed by the High Court, it cannot be said that the original writ petitioners were as such claiming the stepping up of the pay under the ACP Scheme. Their grievance was with respect to the anomaly in the pay scale and their grievance was that while granting upgradation under the ACP Scheme, their juniors were getting higher salaries than what they receive. Therefore, it was a case of removal of anomaly by stepping up of pay of seniors on promotion drawing a less pay than their juniors.5. The High Court has therefore rightly relied and/or considered FR 22 and the order issued by the Government of India on removal of anomaly by stepping up of pay, which reads as under: -(22) Removal of anomaly by stepping up of pay of Senior on promotion drawing less pay than his junior - (a) As a result of application of FR 22 -C. [Now FR 22 (I) (a) (1)]. In order to remove the anomaly of a Government servant promoted or appointed to a higher post on or after 1--4--1961 drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided the in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely: -(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;(c) The anomaly should be directly as a result of the application of FR--22--C. For example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer.The orders refixing the pay of the senior officers I accordance with the above provisions shall be issued under FR-27. The next increment of the senior officer will be drawn on completion of the requisite qualifying service with effect from the date of refixation of pay.[G.I., M.F., 0.M. No.F.2 [78)--E.III (A)/66, dated the 4th February, 1966).6. Therefore, it was a case where a junior was drawing more pay on account of upgradation under the ACP Scheme and there was an anomaly and therefore, the pay of senior was required to be stepped up. Hence, in the facts and circumstances of the case, the High Court has rightly directed the appellants herein to step up the pay of the original writ petitioners keeping in view of pay scale which has been granted to the juniors from the date they have started drawing lesser pay than their juniors. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for.
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DAYALU KASHYAP Vs. THE STATE OF CHHATTISGARH | 1. Leave granted. 2. The present appeal arises qua an incident of 11.09.2010 of 10.30 in the morning when Sub Inspector K.S.Singh (PW-5), on the basis of the information received, apprehended the appellant and found that he was carrying Ganja in a green polythene bag on a wooden Kanwad from Bhaisabeda to Pithapur for transportation. The appellant was charged under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and tried by the Special Judge who convicted the appellant under Section 20(b)(ii)(c) of the NDPS Act and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh. The appellant preferred an appeal before the High Court of Chhattisgarh but that appeal was dismissed by the impugned order dated 28.03.2019. 3. We issued notice on 01.02.2021 including on the bail application as the appellant had undergone sentence of 10 years and his inability to pay fine was resulting in him serving out the remaining sentence of one year. In the course of hearing this matter with some other matter, on 01.03.2021, we noticed that the only point which really arose for consideration was from the effect of provisions of Section 50 of the NDPS Act. Since the petitioner had already undergone 10 years of sentence and served about six months in the alternative sentence of one year for non-payment of fine, we considered appropriate to substitute the sentence of one year against non-payment of fine by the sentence of about six months and directed the appellant to be set free. The appellant was accordingly set free on 03.03.2021. 4. We have heard learned counsel for the appellant on the aforesaid question posed by him. Learned counsel has drawn our attention to the testimony of the Officer (PW-5) carrying out the search. Para 6 of the testimony reads as under: 6. Thereafter, on the spot, at the side of Pithapur Thothapada Chowk, Murumroad, the accused was served notice u/s 50 of the NDPS Act at 12.45 OClock that the information has been received from the informer that the Ganja is kept at both ends of his Kanwad for which it is necessary to conduct search. You can get the search conducted from any Gazetted Officer, Magistrate or even by me. The accused was explained about the meaning of Gazetted Officer and Magistrate. Then, the accused gave verbal consent to get the search conducted by me. The consent given for search was recorded as dictated by the accused. The notice served by me is Exhibit P.5 which bears my signature at part C to C. On the same date at 13 O clock, at the spot itself, on getting the consent from the accused, I got myself, accompanying staff and motorcycle searched from the accused. No objectionable article was found in the search. Our personal search is Search Memo (Exhibit P.6) which bears my signature at part C to C. At 13:15 Oclock, at the spot, the green coloured polythese bundle wrapped at both ends of Kanwad kept in the possession of accused and accused Dayalu Kashyap were searched. Then, the article similar to Ganja were found inside both the polythene bundles. Search Memo is Exhibit P.7 which bears my signature at part C to C. 5. Learned counsel submits that the option given to the appellant to take a third choice other than what is prescribed as the two choices under sub-Section (1) of Section 50 of the Act is something which goes contrary to the mandate of the law and in a way affects the protection provided by the said Section to the accused. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345, more specifically, para 19. The judgment in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh – 1999 (6) SCC 172 to conclude that if a search is made by an empowered Officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only the on basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned not being part of the statute, the same could not have been offered to the appellant and thus, the recovery from him is vitiated. 6. In the conspectus of the facts of the case, we find the recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person. Learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by learned counsel for the appellant. | 1[ds]The judgment in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh – 1999 (6) SCC 172 to conclude that if a search is made by an empowered Officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only the on basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned not being part of the statute, the same could not have been offered to the appellant and thus, the recovery from him is vitiated.6. In the conspectus of the facts of the case, we find the recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person. Learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by learned counsel for the appellant. | 1 | 967 | 269 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
1. Leave granted. 2. The present appeal arises qua an incident of 11.09.2010 of 10.30 in the morning when Sub Inspector K.S.Singh (PW-5), on the basis of the information received, apprehended the appellant and found that he was carrying Ganja in a green polythene bag on a wooden Kanwad from Bhaisabeda to Pithapur for transportation. The appellant was charged under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and tried by the Special Judge who convicted the appellant under Section 20(b)(ii)(c) of the NDPS Act and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh. The appellant preferred an appeal before the High Court of Chhattisgarh but that appeal was dismissed by the impugned order dated 28.03.2019. 3. We issued notice on 01.02.2021 including on the bail application as the appellant had undergone sentence of 10 years and his inability to pay fine was resulting in him serving out the remaining sentence of one year. In the course of hearing this matter with some other matter, on 01.03.2021, we noticed that the only point which really arose for consideration was from the effect of provisions of Section 50 of the NDPS Act. Since the petitioner had already undergone 10 years of sentence and served about six months in the alternative sentence of one year for non-payment of fine, we considered appropriate to substitute the sentence of one year against non-payment of fine by the sentence of about six months and directed the appellant to be set free. The appellant was accordingly set free on 03.03.2021. 4. We have heard learned counsel for the appellant on the aforesaid question posed by him. Learned counsel has drawn our attention to the testimony of the Officer (PW-5) carrying out the search. Para 6 of the testimony reads as under: 6. Thereafter, on the spot, at the side of Pithapur Thothapada Chowk, Murumroad, the accused was served notice u/s 50 of the NDPS Act at 12.45 OClock that the information has been received from the informer that the Ganja is kept at both ends of his Kanwad for which it is necessary to conduct search. You can get the search conducted from any Gazetted Officer, Magistrate or even by me. The accused was explained about the meaning of Gazetted Officer and Magistrate. Then, the accused gave verbal consent to get the search conducted by me. The consent given for search was recorded as dictated by the accused. The notice served by me is Exhibit P.5 which bears my signature at part C to C. On the same date at 13 O clock, at the spot itself, on getting the consent from the accused, I got myself, accompanying staff and motorcycle searched from the accused. No objectionable article was found in the search. Our personal search is Search Memo (Exhibit P.6) which bears my signature at part C to C. At 13:15 Oclock, at the spot, the green coloured polythese bundle wrapped at both ends of Kanwad kept in the possession of accused and accused Dayalu Kashyap were searched. Then, the article similar to Ganja were found inside both the polythene bundles. Search Memo is Exhibit P.7 which bears my signature at part C to C. 5. Learned counsel submits that the option given to the appellant to take a third choice other than what is prescribed as the two choices under sub-Section (1) of Section 50 of the Act is something which goes contrary to the mandate of the law and in a way affects the protection provided by the said Section to the accused. To support his contention, he has relied upon the judgment of State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345, more specifically, para 19. The judgment in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh – 1999 (6) SCC 172 to conclude that if a search is made by an empowered Officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only the on basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned not being part of the statute, the same could not have been offered to the appellant and thus, the recovery from him is vitiated. 6. In the conspectus of the facts of the case, we find the recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person. Learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by learned counsel for the appellant.
### Response:
1
### Explanation:
The judgment in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh – 1999 (6) SCC 172 to conclude that if a search is made by an empowered Officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only the on basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned not being part of the statute, the same could not have been offered to the appellant and thus, the recovery from him is vitiated.6. In the conspectus of the facts of the case, we find the recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person. Learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by learned counsel for the appellant.
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Tek Chand (Dead) By Lrs. & Others Vs. Union of India & Others | K. Ramaswamy, J. 1. Lands comprising a few bighas belonging to the claimants (appellants) and situated in the area now known as ‘Nehru Place’ in Delhi were notified for acquisition by the Government of India by a Notification dated November 13, 1959, issued under Section 4 of the Land Acquisition Act, 1894. The said lands were duly acquired under the said Act. In compensation proceedings the Land Acquisition Collector awarded to the claimants (appellants) compensation at the rate of Rs. 2,000 per bigha and further awarded solatium and interest as provided by law. In two references under Section 18 of the Land Acquisition Act at the instance of the appellants, the Additional District Judge enhanced the compensation from Rs. 2,000 per bigha to Rs. 4,000/5,000 per bigha. From the orders of the Additional District Judge, the appellants filed appeals in Delhi High Court. The Delhi High Court enhanced the compensation to Rs. 7,000 per bigha and also awarded solatium and interest. Compensation was determined at the aforesaid rate largely on the footing of a sale of comparable land by one Puran to the Delhi Finance Company Private Limited (hereinafter referred to as the ‘DLF Co.’). That sale took place a few months prior to the date of the Notification and rate at which the land was sold was Rs. 6,000 per bigha. In view of the period of few months which had gone by and the rise in land values, the High Court determined the compensation at Rs. 7,000 per bigha. The claimants strongly relied on the instances of sales of small developed plots by the DLF Co. and pointed out that it was on the basis of the sales that the High Court had awarded compensation at the rate of Rs. 11 per sq. yard to the DLF Co. in respect of similar lands of the said company acquired by the Government. This amount was arrived at by taking the price of developed plots sold by DLF Co. and deducting therefrom the cost of development. It was alleged by the claimants that this land was contiguous to the land of the claimants acquired as aforesaid and the acquisition was at almost the same time as in the case of the claimants. It was submitted by them that the principal reason given by learned District Judge as well, as the High Court for not accepting the instance of the compensation awarded to DLF Co. was not tenable in law. It was submitted by them that compensation should also have been awarded to them on the basis of the said instance. The High Court has taken the view that the instance of compensation awarded to DLF Co. was not acceptable mainly because that company was in a position to develop the land and to realise its potentiality and had been able to sell certain developed plots at a very much higher rates. The High Court took the view that the higher compensation was liable to be awarded to the DLF Co. because that organisation was in a better position to develop the land and hence, the potentiality of the land in its hands was greater.2. With respect to learned Judges of the High Court who delivered the impugned judgment, in our opinion, the view taken by them cannot be sustained. In land acquisition proceedings compensation has to be fixed on the basis of a hypothetical sale at or about the time of the notification under Section 4 of the Land Acquisition Act of similar land by a willing seller to a willing buyer, there being no other factors like urgent need of money or urgent need of the land for a special purpose and so on which might depress or augment the price. In determining this compensation the ability of a particular party or his lack of ability to develop the land and to realise its potential, cannot be regarded as a relevant circumstance. The High Court, therefore, was in error in placing great reliance of the aforesaid circumstances in determining the value of the land for fixing the compensation.3. We would have proceeded to determine the compensation ourselves but for the fact that the appellants have failed to furnish any material on record of this Court on which we can fix the proper compensation nor have any arguments been advanced before us in that regard. In these circumstance | 1[ds]2. With respect to learned Judges of the High Court who delivered the impugned judgment, in our opinion, the view taken by them cannot be sustained. In land acquisition proceedings compensation has to be fixed on the basis of a hypothetical sale at or about the time of the notification under Section 4 of the Land Acquisition Act of similar land by a willing seller to a willing buyer, there being no other factors like urgent need of money or urgent need of the land for a special purpose and so on which might depress or augment the price. In determining this compensation the ability of a particular party or his lack of ability to develop the land and to realise its potential, cannot be regarded as a relevant circumstance. The High Court, therefore, was in error in placing great reliance of the aforesaid circumstances in determining the value of the land for fixing the compensation.3. We would have proceeded to determine the compensation ourselves but for the fact that the appellants have failed to furnish any material on record of this Court on which we can fix the proper compensation nor have any arguments been advanced before us in that regard. | 1 | 786 | 220 | ### Instruction:
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K. Ramaswamy, J. 1. Lands comprising a few bighas belonging to the claimants (appellants) and situated in the area now known as ‘Nehru Place’ in Delhi were notified for acquisition by the Government of India by a Notification dated November 13, 1959, issued under Section 4 of the Land Acquisition Act, 1894. The said lands were duly acquired under the said Act. In compensation proceedings the Land Acquisition Collector awarded to the claimants (appellants) compensation at the rate of Rs. 2,000 per bigha and further awarded solatium and interest as provided by law. In two references under Section 18 of the Land Acquisition Act at the instance of the appellants, the Additional District Judge enhanced the compensation from Rs. 2,000 per bigha to Rs. 4,000/5,000 per bigha. From the orders of the Additional District Judge, the appellants filed appeals in Delhi High Court. The Delhi High Court enhanced the compensation to Rs. 7,000 per bigha and also awarded solatium and interest. Compensation was determined at the aforesaid rate largely on the footing of a sale of comparable land by one Puran to the Delhi Finance Company Private Limited (hereinafter referred to as the ‘DLF Co.’). That sale took place a few months prior to the date of the Notification and rate at which the land was sold was Rs. 6,000 per bigha. In view of the period of few months which had gone by and the rise in land values, the High Court determined the compensation at Rs. 7,000 per bigha. The claimants strongly relied on the instances of sales of small developed plots by the DLF Co. and pointed out that it was on the basis of the sales that the High Court had awarded compensation at the rate of Rs. 11 per sq. yard to the DLF Co. in respect of similar lands of the said company acquired by the Government. This amount was arrived at by taking the price of developed plots sold by DLF Co. and deducting therefrom the cost of development. It was alleged by the claimants that this land was contiguous to the land of the claimants acquired as aforesaid and the acquisition was at almost the same time as in the case of the claimants. It was submitted by them that the principal reason given by learned District Judge as well, as the High Court for not accepting the instance of the compensation awarded to DLF Co. was not tenable in law. It was submitted by them that compensation should also have been awarded to them on the basis of the said instance. The High Court has taken the view that the instance of compensation awarded to DLF Co. was not acceptable mainly because that company was in a position to develop the land and to realise its potentiality and had been able to sell certain developed plots at a very much higher rates. The High Court took the view that the higher compensation was liable to be awarded to the DLF Co. because that organisation was in a better position to develop the land and hence, the potentiality of the land in its hands was greater.2. With respect to learned Judges of the High Court who delivered the impugned judgment, in our opinion, the view taken by them cannot be sustained. In land acquisition proceedings compensation has to be fixed on the basis of a hypothetical sale at or about the time of the notification under Section 4 of the Land Acquisition Act of similar land by a willing seller to a willing buyer, there being no other factors like urgent need of money or urgent need of the land for a special purpose and so on which might depress or augment the price. In determining this compensation the ability of a particular party or his lack of ability to develop the land and to realise its potential, cannot be regarded as a relevant circumstance. The High Court, therefore, was in error in placing great reliance of the aforesaid circumstances in determining the value of the land for fixing the compensation.3. We would have proceeded to determine the compensation ourselves but for the fact that the appellants have failed to furnish any material on record of this Court on which we can fix the proper compensation nor have any arguments been advanced before us in that regard. In these circumstance
### Response:
1
### Explanation:
2. With respect to learned Judges of the High Court who delivered the impugned judgment, in our opinion, the view taken by them cannot be sustained. In land acquisition proceedings compensation has to be fixed on the basis of a hypothetical sale at or about the time of the notification under Section 4 of the Land Acquisition Act of similar land by a willing seller to a willing buyer, there being no other factors like urgent need of money or urgent need of the land for a special purpose and so on which might depress or augment the price. In determining this compensation the ability of a particular party or his lack of ability to develop the land and to realise its potential, cannot be regarded as a relevant circumstance. The High Court, therefore, was in error in placing great reliance of the aforesaid circumstances in determining the value of the land for fixing the compensation.3. We would have proceeded to determine the compensation ourselves but for the fact that the appellants have failed to furnish any material on record of this Court on which we can fix the proper compensation nor have any arguments been advanced before us in that regard.
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The State Of Orissa And Another Vs. M/S. Chakobhai Ghelabhai And Company | a rule prescribing fees for appeals and applications in revision was within the legislative competence of the Provincial Legislature. The Act was enacted in 1947and the source of legislative power must be found in the Government of India Act. 199935. Item 48 of List II (Provincial Legislative List) in the Seventh Schedule of the said Act related to "Taxes on the sale of goods" and item 54 read: "Fees in respect of any of the matters in this list, but not including fees taken in any court." Item 1 related inter alia to "constitution and organisation of all courts except the Federal Court, and fees taken therein."The High Court held that the assessing authorities including the Assistant Collector of Sales-Tax and the Collector of Commercial Taxes, Orissa were not courts in the strict sense of the term "Court", though they exercised quasi-judicial functions under the Act. We think that that is a correct view. But it does not necessarily follow that the fees imposed under R. 59 read with S. 29(2) (s) are illegal. Under items 48 and 54 the then Provincial Legislature had power to make a law for taxes on the sale of goods and for fees in respect thereof. Even with regard to Court fees, the Provincial Legislature had power to make a law under item 1.We do not think that S. 29(2) (s) can be held to be bad on the ground of legislative incompetence. Nor do we think that R. 59 goes beyond what is permitted under S. 29(2) (s). The fees imposed are not taxes at all; they come within the expression "other matters (including fees) incidental to the disposal of appeals and applications for revision etc.". We are unable to agree with the High Court that the word "incidental has reference to a matter of casual nature only. The procedure for disposal of an appeal includes as a necessary incidental matter the filing of an appeal on a proper fee. The distinction between a tax and a fee was considered by this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar, 1954 SCR 1005 : (AIR 1954 SC 282 ) and it is unnecessary to repeat what was said there. We consider that the fees imposed by R. 59 are for services rendered by a governmental agency and though ordinarily fees are uniform, there may be various kinds of fees and it is not possible to formulate a definition that would be applicable to all cases.7. Now, the last finding of the High Court is that the notice under S. 12(5) was not in accordance with law. Here again we think that the High Court was in error. The notice was issued in Form No. VI, which is a combined form for the purposes of Ss. 11 and 12. A foot-note appended to the form required the assessing authority to score out unnecessary words. The High Court points out that this was not done. We are, however, unable to agree with the High Court that the failure to score out unnecessary words made the notice bad in law. The respondent sent a reply to the notice and claimed that it was not a dealer in Orissa. Obviously, the respondent had no difficulty in understanding that the notice was one under S. 12(5) of the Act. The notice stated in terms that the respondent should show cause why a penalty should not be imposed under S. 12(5) of the Act. Section 12(5) as it stood at the relevant time was in these terms :"S. 12 (5). If upon information which has come into his possession, the Collector is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registration, the Collector shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such period and all subsequent periods and the Collector may direct that the dealer shall pay, by way of penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount."It has been argued before us that one notice was issued for several quarters and an assessment was made for each quarter separately-four quarters on July 4, 1951, and eight quarters on August 29, 1951.This, it is contended, was illegal. We are unable to accept this contention as correct. Section 12(5) talks of a period, and the period may consist of more than one quarter. The return has, however, to be submitted in Form IV which read with R. 20 of the Orissa Sales Tax Rules, 1947, requires the assessee to furnish details of his turn-over for each quarter. The assessment must, therefore, be made on the taxable turn-over of each quarter.8. Lastly, it has been argued that there was no notice under S. 12(5) for the last three quarters and, therefore, for those quarters the assessment orders must be held to be bad. The appellate authority has pointed out that even for the last three quarters the assessing officer, after he had made his orders of assessment in the first five quarters, had directed the respondent to produce his accounts, but no accounts were produced. Section 12(5) enables the assessing authority to make a best judgment assessment for "all subsequent periods" after giving the dealer a reasonable opportunity of being heard. Such an opportunity was given in the present case even in respect of the last three quarters, and we are unable to hold that the assessment for the last three quarters was bad.9. For the reasons given above, we must allow this appeal, set aside the judgment and order of the High Court dated September 5, 1955, and dismiss the writ petition of the respondent. The appellants will be entitled to their costs of the proceedings in the High Court and in this Court. | 1[ds]We do not agree. The question where a sale is completed depends on facts and is not a pure question ofIt is worthy of note that a no stage subsequent to the admission did the respondent repudiate it or challenge its correctness. Even in the writ petition it was not stated that a wrong admission had been made; on the contrary, the appellate authoritys order in which the admission was set out was an annexure to the writ petition. It is indeed true that in paragraph 13(a) of the writ petition a contention was raised with regard to the sales of theperiod and a reference was made to the Explanation to Art. 286(1) (a) as it then stood. But the necessary averments to attract the Explanation were not made, and nowhere was it stated that the goods were despatched outside Orissa for the purpose of consumption in the delivery State. In other words no foundation was laid for making a distinction between theand post Constitution sales, and with regard to all of them it was admitted that they were completed inadmission which was never repudiated or challenged. We are, therefore, of the opinion that the High Court was clearly in error in its first finding as to the unconstitutionality of the assessment orders made.6. We think that the High Court was also in error in its finding as to the legality of the fees levied on the memorandum of appeal and the application in revision. Section 29 of the Act deals with the rule making power. It statesare unable to accept this contention as correct. Section 12(5) talks of a period, and the period may consist of more than one quarter. The return has, however, to be submitted in Form IV which read with R. 20 of the Orissa Sales Tax Rules, 1947, requires the assessee to furnish details of hisfor each quarter. The assessment must, therefore, be made on the taxableThe appellate authority has pointed out that even for the last three quarters the assessing officer, after he had made his orders of assessment in the first five quarters, had directed the respondent to produce his accounts, but no accounts were produced. Section 12(5) enables the assessing authority to make a best judgment assessment for "all subsequent periods" after giving the dealer a reasonable opportunity of being heard. Such an opportunity was given in the present case even in respect of the last three quarters, and we are unable to hold that the assessment for the last three quarters was bad.9. For the reasons given above, we must allow this appeal, set aside the judgment and order of the High Court dated September 5, 1955, and dismiss the writ petition of the respondent. The appellants will be entitled to their costs of the proceedings in the High Court and in this Court. | 1 | 3,136 | 532 | ### Instruction:
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a rule prescribing fees for appeals and applications in revision was within the legislative competence of the Provincial Legislature. The Act was enacted in 1947and the source of legislative power must be found in the Government of India Act. 199935. Item 48 of List II (Provincial Legislative List) in the Seventh Schedule of the said Act related to "Taxes on the sale of goods" and item 54 read: "Fees in respect of any of the matters in this list, but not including fees taken in any court." Item 1 related inter alia to "constitution and organisation of all courts except the Federal Court, and fees taken therein."The High Court held that the assessing authorities including the Assistant Collector of Sales-Tax and the Collector of Commercial Taxes, Orissa were not courts in the strict sense of the term "Court", though they exercised quasi-judicial functions under the Act. We think that that is a correct view. But it does not necessarily follow that the fees imposed under R. 59 read with S. 29(2) (s) are illegal. Under items 48 and 54 the then Provincial Legislature had power to make a law for taxes on the sale of goods and for fees in respect thereof. Even with regard to Court fees, the Provincial Legislature had power to make a law under item 1.We do not think that S. 29(2) (s) can be held to be bad on the ground of legislative incompetence. Nor do we think that R. 59 goes beyond what is permitted under S. 29(2) (s). The fees imposed are not taxes at all; they come within the expression "other matters (including fees) incidental to the disposal of appeals and applications for revision etc.". We are unable to agree with the High Court that the word "incidental has reference to a matter of casual nature only. The procedure for disposal of an appeal includes as a necessary incidental matter the filing of an appeal on a proper fee. The distinction between a tax and a fee was considered by this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar, 1954 SCR 1005 : (AIR 1954 SC 282 ) and it is unnecessary to repeat what was said there. We consider that the fees imposed by R. 59 are for services rendered by a governmental agency and though ordinarily fees are uniform, there may be various kinds of fees and it is not possible to formulate a definition that would be applicable to all cases.7. Now, the last finding of the High Court is that the notice under S. 12(5) was not in accordance with law. Here again we think that the High Court was in error. The notice was issued in Form No. VI, which is a combined form for the purposes of Ss. 11 and 12. A foot-note appended to the form required the assessing authority to score out unnecessary words. The High Court points out that this was not done. We are, however, unable to agree with the High Court that the failure to score out unnecessary words made the notice bad in law. The respondent sent a reply to the notice and claimed that it was not a dealer in Orissa. Obviously, the respondent had no difficulty in understanding that the notice was one under S. 12(5) of the Act. The notice stated in terms that the respondent should show cause why a penalty should not be imposed under S. 12(5) of the Act. Section 12(5) as it stood at the relevant time was in these terms :"S. 12 (5). If upon information which has come into his possession, the Collector is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registration, the Collector shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such period and all subsequent periods and the Collector may direct that the dealer shall pay, by way of penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount."It has been argued before us that one notice was issued for several quarters and an assessment was made for each quarter separately-four quarters on July 4, 1951, and eight quarters on August 29, 1951.This, it is contended, was illegal. We are unable to accept this contention as correct. Section 12(5) talks of a period, and the period may consist of more than one quarter. The return has, however, to be submitted in Form IV which read with R. 20 of the Orissa Sales Tax Rules, 1947, requires the assessee to furnish details of his turn-over for each quarter. The assessment must, therefore, be made on the taxable turn-over of each quarter.8. Lastly, it has been argued that there was no notice under S. 12(5) for the last three quarters and, therefore, for those quarters the assessment orders must be held to be bad. The appellate authority has pointed out that even for the last three quarters the assessing officer, after he had made his orders of assessment in the first five quarters, had directed the respondent to produce his accounts, but no accounts were produced. Section 12(5) enables the assessing authority to make a best judgment assessment for "all subsequent periods" after giving the dealer a reasonable opportunity of being heard. Such an opportunity was given in the present case even in respect of the last three quarters, and we are unable to hold that the assessment for the last three quarters was bad.9. For the reasons given above, we must allow this appeal, set aside the judgment and order of the High Court dated September 5, 1955, and dismiss the writ petition of the respondent. The appellants will be entitled to their costs of the proceedings in the High Court and in this Court.
### Response:
1
### Explanation:
We do not agree. The question where a sale is completed depends on facts and is not a pure question ofIt is worthy of note that a no stage subsequent to the admission did the respondent repudiate it or challenge its correctness. Even in the writ petition it was not stated that a wrong admission had been made; on the contrary, the appellate authoritys order in which the admission was set out was an annexure to the writ petition. It is indeed true that in paragraph 13(a) of the writ petition a contention was raised with regard to the sales of theperiod and a reference was made to the Explanation to Art. 286(1) (a) as it then stood. But the necessary averments to attract the Explanation were not made, and nowhere was it stated that the goods were despatched outside Orissa for the purpose of consumption in the delivery State. In other words no foundation was laid for making a distinction between theand post Constitution sales, and with regard to all of them it was admitted that they were completed inadmission which was never repudiated or challenged. We are, therefore, of the opinion that the High Court was clearly in error in its first finding as to the unconstitutionality of the assessment orders made.6. We think that the High Court was also in error in its finding as to the legality of the fees levied on the memorandum of appeal and the application in revision. Section 29 of the Act deals with the rule making power. It statesare unable to accept this contention as correct. Section 12(5) talks of a period, and the period may consist of more than one quarter. The return has, however, to be submitted in Form IV which read with R. 20 of the Orissa Sales Tax Rules, 1947, requires the assessee to furnish details of hisfor each quarter. The assessment must, therefore, be made on the taxableThe appellate authority has pointed out that even for the last three quarters the assessing officer, after he had made his orders of assessment in the first five quarters, had directed the respondent to produce his accounts, but no accounts were produced. Section 12(5) enables the assessing authority to make a best judgment assessment for "all subsequent periods" after giving the dealer a reasonable opportunity of being heard. Such an opportunity was given in the present case even in respect of the last three quarters, and we are unable to hold that the assessment for the last three quarters was bad.9. For the reasons given above, we must allow this appeal, set aside the judgment and order of the High Court dated September 5, 1955, and dismiss the writ petition of the respondent. The appellants will be entitled to their costs of the proceedings in the High Court and in this Court.
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Hindustan Poles Corporation Vs. Commissioner Of Central Excise, Calcutta | earlier judgment it was held that if there should come into existence a new article with distinct character and use as a result of the process, the essential condition justifying manufacture of good is satisfied. 27. This Court in Commissioner of Sales Tax, Orissa and Anr. vs. Jagannath Cotton Company and Anr. (1995) 5 SCC 527 - mentioned that manufacture in its ordinary connotation, signifies emergence of new and different goods as understood in relevant commercial circles. 28. In Gramophone Co. of India Ltd. vs. Collector of Customs, Calcutta (2000) 1 SCC 549, this Court examined earlier cases of this Court and held that the Manufacture implies a change, but every change is not manufacture and yet every change of an article is the result of treatment labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character and use. In this case, the word (manufacture has various shades of meaning but unless defined under the Act it is to be interpreted in the context of the object and the language used in the sections. It would not be applicable in ceases where only processing activity is carried out. Further, such production activity must be by an industrial undertaking. 29. CCE vs. Markfed Vanaspati & Allied Industries reported in (2003) 4 SCC 184, this Court clearly held that the burden to prove that there is manufacture is on the Revenue. In that case, the question arose was whether the goods became excisable merely because it fell within a Tariff Item. Spent earth was earth on which duty had been paid. It remained earth even after the processing. Thus, if duty was to be levied on it again, it would amount to levying double duty on the same product. This Court further observed that merely because an item falls under Tariff Entry, it cannot be presumed or deemed that there is manufacture. 30. In the case of CCE vs. Technoweld Industries reported in (2003) 11 SCC 798, the question was whether drawing of wires wire rods amounted to manufacture. It was held that both the products were wires and merely because they were covered by two separate entries did not mean that the product was excisable. It was held that in the absence of any manufacture the product did not become excisable merely because there were two separate entries. 31. In the case of Metlex (I) P. Ltd. vs. CCE reported in (2005) 1 SCC 271, this Court observed that the entry makes no distinction between ordinary film and film which is lacquered or metallised or laminated. The Court arrived at a definite conclusion that a film remained a film and no new or distinct product has come into existence. 32. In Aman Marble Industries (P) Ltd. vs. CCE reported in (2005) 1 SCC 279, the question arose whether cutting of marble slabs amounted to manufacture for the purpose of Central Excise Act. This Court observed that after the activity is completed a marble would remain marble. Therefore, this activity did not attract the tax. 33. In Rajasthan SEB vs. Associated Stone Industries reported in (2000) 6 SCC 141, this Court observed that the word manufacture generally and in the ordinary parlance in the absence of its definition in the Act should be understood to mean bringing to existence a new and different article having a distinctive name, character or use after undergoing some transformation. When no new product as such comes into existence, there is no process of manufacture. Cutting and polishing stones into slabs is not a process of manufacture for the obvious and simple reason that no new and distinct commercial product came into existence as the end product still remained stone and thus its original identify continued. Ultimately, this Court held that it was also not possible to accept that excavation of stones and thereafter cutting and polishing them into slabs resulted in any manufacture of goods. 34. The question for consideration in Shyam Oil Cake Ltd.s case (supra) was whether processing of the edible oil, manufactured by the appellant, resulted in manufacture. This Court held that neither in the section note nor in the chapter note nor in the tariff item do we find any indication that the process indicated is to amount to manufacture. The start with, the product was edible vegetable oil. Even after refining, it remained edible vegetable oil. As actual manufacture has not taken place, the deeming provision cannot be brought into play in the absence of it being specifically stated that the process amounts to manufacture. 35. We have heard learned counsel for the parties at length. We have also carefully perused the pleadings and examined a series of cases decided by this Court. The following conclusions are irresistible: 1) The process carried out by the appellants do not change the basic identity or original character of M.S. Welded Pipes to make it a new marketable product leading to manufacture as defined under Section 2(f) of the Central Excise Act, 1944. 2) The burden to prove manufacture is always on the Revenue. In the instance case the Revenue has completely failed to prove that the activity carried out by the appellant amounts to manufacturing. It is settled law that when one particular item is covered by one specified entry, then the Revenue is not permitted to travel to residuary entry. 3) The residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries. Unless the Department can establish that the goods in question can by no conceivable process of welding be brought under any of the tariff items, resort cannot be had to be residuary item. 36. In view of the settled legal position the activity of the appellants of merely joining of three pipes, one with other, of different dimensions to obtain a desired length can by no stretch of imagination be brought within the category of manufacture. | 1[ds]We have also carefully perused the pleadings and examined a series of cases decided by this Court. The following conclusions are irresistible:1) The process carried out by the appellants do not change the basic identity or original character of M.S. Welded Pipes to make it a new marketable product leading to manufacture as defined under Section 2(f) of the Central Excise Act, 19442) The burden to prove manufacture is always on the Revenue. In the instance case the Revenue has completely failed to prove that the activity carried out by the appellant amounts to manufacturing. It is settled law that when one particular item is covered by one specified entry, then the Revenue is not permitted to travel to residuary entry3) The residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries. Unless the Department can establish that the goods in question can by no conceivable process of welding be brought under any of the tariff items, resort cannot be had to be residuary item36. In view of the settled legal position the activity of the appellants of merely joining of three pipes, one with other, of different dimensions to obtain a desired length can by no stretch of imagination be brought within the category of manufacture | 1 | 5,405 | 238 | ### Instruction:
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earlier judgment it was held that if there should come into existence a new article with distinct character and use as a result of the process, the essential condition justifying manufacture of good is satisfied. 27. This Court in Commissioner of Sales Tax, Orissa and Anr. vs. Jagannath Cotton Company and Anr. (1995) 5 SCC 527 - mentioned that manufacture in its ordinary connotation, signifies emergence of new and different goods as understood in relevant commercial circles. 28. In Gramophone Co. of India Ltd. vs. Collector of Customs, Calcutta (2000) 1 SCC 549, this Court examined earlier cases of this Court and held that the Manufacture implies a change, but every change is not manufacture and yet every change of an article is the result of treatment labour and manipulation. But something more is necessary and there must be transformation; a new and different article must emerge having a distinctive name, character and use. In this case, the word (manufacture has various shades of meaning but unless defined under the Act it is to be interpreted in the context of the object and the language used in the sections. It would not be applicable in ceases where only processing activity is carried out. Further, such production activity must be by an industrial undertaking. 29. CCE vs. Markfed Vanaspati & Allied Industries reported in (2003) 4 SCC 184, this Court clearly held that the burden to prove that there is manufacture is on the Revenue. In that case, the question arose was whether the goods became excisable merely because it fell within a Tariff Item. Spent earth was earth on which duty had been paid. It remained earth even after the processing. Thus, if duty was to be levied on it again, it would amount to levying double duty on the same product. This Court further observed that merely because an item falls under Tariff Entry, it cannot be presumed or deemed that there is manufacture. 30. In the case of CCE vs. Technoweld Industries reported in (2003) 11 SCC 798, the question was whether drawing of wires wire rods amounted to manufacture. It was held that both the products were wires and merely because they were covered by two separate entries did not mean that the product was excisable. It was held that in the absence of any manufacture the product did not become excisable merely because there were two separate entries. 31. In the case of Metlex (I) P. Ltd. vs. CCE reported in (2005) 1 SCC 271, this Court observed that the entry makes no distinction between ordinary film and film which is lacquered or metallised or laminated. The Court arrived at a definite conclusion that a film remained a film and no new or distinct product has come into existence. 32. In Aman Marble Industries (P) Ltd. vs. CCE reported in (2005) 1 SCC 279, the question arose whether cutting of marble slabs amounted to manufacture for the purpose of Central Excise Act. This Court observed that after the activity is completed a marble would remain marble. Therefore, this activity did not attract the tax. 33. In Rajasthan SEB vs. Associated Stone Industries reported in (2000) 6 SCC 141, this Court observed that the word manufacture generally and in the ordinary parlance in the absence of its definition in the Act should be understood to mean bringing to existence a new and different article having a distinctive name, character or use after undergoing some transformation. When no new product as such comes into existence, there is no process of manufacture. Cutting and polishing stones into slabs is not a process of manufacture for the obvious and simple reason that no new and distinct commercial product came into existence as the end product still remained stone and thus its original identify continued. Ultimately, this Court held that it was also not possible to accept that excavation of stones and thereafter cutting and polishing them into slabs resulted in any manufacture of goods. 34. The question for consideration in Shyam Oil Cake Ltd.s case (supra) was whether processing of the edible oil, manufactured by the appellant, resulted in manufacture. This Court held that neither in the section note nor in the chapter note nor in the tariff item do we find any indication that the process indicated is to amount to manufacture. The start with, the product was edible vegetable oil. Even after refining, it remained edible vegetable oil. As actual manufacture has not taken place, the deeming provision cannot be brought into play in the absence of it being specifically stated that the process amounts to manufacture. 35. We have heard learned counsel for the parties at length. We have also carefully perused the pleadings and examined a series of cases decided by this Court. The following conclusions are irresistible: 1) The process carried out by the appellants do not change the basic identity or original character of M.S. Welded Pipes to make it a new marketable product leading to manufacture as defined under Section 2(f) of the Central Excise Act, 1944. 2) The burden to prove manufacture is always on the Revenue. In the instance case the Revenue has completely failed to prove that the activity carried out by the appellant amounts to manufacturing. It is settled law that when one particular item is covered by one specified entry, then the Revenue is not permitted to travel to residuary entry. 3) The residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries. Unless the Department can establish that the goods in question can by no conceivable process of welding be brought under any of the tariff items, resort cannot be had to be residuary item. 36. In view of the settled legal position the activity of the appellants of merely joining of three pipes, one with other, of different dimensions to obtain a desired length can by no stretch of imagination be brought within the category of manufacture.
### Response:
1
### Explanation:
We have also carefully perused the pleadings and examined a series of cases decided by this Court. The following conclusions are irresistible:1) The process carried out by the appellants do not change the basic identity or original character of M.S. Welded Pipes to make it a new marketable product leading to manufacture as defined under Section 2(f) of the Central Excise Act, 19442) The burden to prove manufacture is always on the Revenue. In the instance case the Revenue has completely failed to prove that the activity carried out by the appellant amounts to manufacturing. It is settled law that when one particular item is covered by one specified entry, then the Revenue is not permitted to travel to residuary entry3) The residuary entry is meant only for those categories of goods which clearly fall outside the ambit of specified entries. Unless the Department can establish that the goods in question can by no conceivable process of welding be brought under any of the tariff items, resort cannot be had to be residuary item36. In view of the settled legal position the activity of the appellants of merely joining of three pipes, one with other, of different dimensions to obtain a desired length can by no stretch of imagination be brought within the category of manufacture
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Commissioner Of Income Tax, Calcutta Vs. Burlop Dealers Ltd | under Section 34 (1) (a) of the Income-tax Act 1922, after the amendment in 1948, and to re-open the assessment if income had been under assessed owing to the failure of the assessee to disclose fully and truly all material facts necessary for the assessment. He confirmed the order observing that the assessee had misled the Income-tax Officer into believing that there was a genuine arrangement with Ratiram Tansukhrai and had stated in the profit and loss account that the amount paid to Ratiram Tansukhrai was the share of the latter in the partnership, whereas no such share was payable to Ratiram Tansukhrai.4. In appeal against the order of the Appellate Assistant Commissioner the Income-tax Appellate Tribunal held that the assessee had produced all the relevant accounts and documents necessary for completing the assessment, and the assessee was under no obligation to inform the Income-tax Officer about the true nature of the transactions. The Tribunal on that view reversed the order of the Appellate Assistant Commissioner and directed that the amount of Rs. 87,937/- be excluded from the total income of the assessee for the year 1949-50.5. An application under Section 66 (1) of the Indian Income-tax Act for stating a case to the High Court was rejected by the Tribunal. A petition to the High Court of Calcutta under Section 66 (2) for directing the Tribunal to submit a statement of the case was also rejected. The Commissioner has appealed to this Court.6. Section 34 (1) of the Indian Income-tax Act, 1922, as it stood in the Assessment year 1949-50 provided:"If-(a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed.x x x x x or(b) notwithstanding that there has been no omission or failure as mentioned in Clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been underassessed, x x xhe may in cases falling under Cl (a) at any time within eight years and in cases falling under Cl. (b) at any time within four years of the end of that year, serve on the assessee, x x x x x a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22, and may proceed to assess or re-assess such income, profits or gains x x x x x"7. The Income-tax Officer had in consequence of information in his possession that the agreement with Ratiram Tansukhrai was a sham transaction reason to believe that income chargeable to tax had escaped assessment. Such a case would however appropriately fall under Section 34 (1) (b). But the period prescribed for serving a notice under Section 34 (1) (b) had elapsed. Under Section 34 (1) (a) the Income-tax Officer had authority to serve a notice when he had reason to believe that by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year, income chargeable to tax had escaped assessment. As observed by this Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta 41 ITR 191 at p. 200 = (AIR 1961 SC 372 at p. 376)."The words used are "omission or failure to disclose fully and truly all material facts necessary for his assessment for that year." It postulates a duty on every assessee to disclose fully and truly all material facts necessary for his assessment. What facts are material and necessary for assessment will differ from case to case. In every assessment proceeding, the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee, or discovered by him on the basis of the facts disclosed, or otherwise, the assessing authority has to draw inferences as regards certain other facts: and ultimately, from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences, and ascertain on a correct interpretation of the taxing enactment, the proper tax leviable."8. We are of the view that under Section 34 (1) (a) if the assessee has disclosed primary facts relevant to the assessment, he is under no obligation to instruct the Income-tax officer about the inference which the Income tax Officer may raise from those facts. The terms of the Explanation to Section 34 (1) also do not impose a more onerous obligation. Mere production of the books of account or other evidence from which material facts could with due diligence have been discovered does not necessarily amount to disclosure within the meaning of Section 34 (1), but where on the evidence and the materials produced the Income-tax Officer could have reached a conclusion other than the one which he has reached, a proceeding under Section 34 (1) (a) will not he merely on the ground that the Income-tax officer has raised an inference which he may later regard as erroneous.9. The assessee had disclosed his books of account and evidence from which material facts could be discovered: it was under no obligation to inform the Income-tax Officer about the possible inferences which may be raised against him. It was for the Income-tax Officer to raise such an inference and if he did not do so the Income which has escaped assessment cannot be brought to lay under Section 34 (1) (a). | 0[ds]7. The Income-tax Officer had in consequence of information in his possession that the agreement with Ratiram Tansukhrai was a sham transaction reason to believe that income chargeable to tax had escaped assessment. Such a case would however appropriately fall under Section 34 (1) (b). But the period prescribed for serving a notice under Section 34 (1) (b) had elapsed. Under Section 34 (1) (a) the Income-tax Officer had authority to serve a notice when he had reason to believe that by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year, income chargeable to tax had escaped assessment.We are of the view that under Section 34 (1) (a) if the assessee has disclosed primary facts relevant to the assessment, he is under no obligation to instruct the Income-tax officer about the inference which the Income tax Officer may raise from those facts. The terms of the Explanation to Section 34 (1) also do not impose a more onerous obligation. Mere production of the books of account or other evidence from which material facts could with due diligence have been discovered does not necessarily amount to disclosure within the meaning of Section 34 (1), but where on the evidence and the materials produced the Income-tax Officer could have reached a conclusion other than the one which he has reached, a proceeding under Section 34 (1) (a) will not he merely on the ground that the Income-tax officer has raised an inference which he may later regard as erroneous.9. The assessee had disclosed his books of account and evidence from which material facts could be discovered: it was under no obligation to inform the Income-tax Officer about the possible inferences which may be raised against him. It was for the Income-tax Officer to raise such an inference and if he did not do so the Income which has escaped assessment cannot be brought to lay under Section 34 (1) (a). | 0 | 1,630 | 382 | ### 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:
under Section 34 (1) (a) of the Income-tax Act 1922, after the amendment in 1948, and to re-open the assessment if income had been under assessed owing to the failure of the assessee to disclose fully and truly all material facts necessary for the assessment. He confirmed the order observing that the assessee had misled the Income-tax Officer into believing that there was a genuine arrangement with Ratiram Tansukhrai and had stated in the profit and loss account that the amount paid to Ratiram Tansukhrai was the share of the latter in the partnership, whereas no such share was payable to Ratiram Tansukhrai.4. In appeal against the order of the Appellate Assistant Commissioner the Income-tax Appellate Tribunal held that the assessee had produced all the relevant accounts and documents necessary for completing the assessment, and the assessee was under no obligation to inform the Income-tax Officer about the true nature of the transactions. The Tribunal on that view reversed the order of the Appellate Assistant Commissioner and directed that the amount of Rs. 87,937/- be excluded from the total income of the assessee for the year 1949-50.5. An application under Section 66 (1) of the Indian Income-tax Act for stating a case to the High Court was rejected by the Tribunal. A petition to the High Court of Calcutta under Section 66 (2) for directing the Tribunal to submit a statement of the case was also rejected. The Commissioner has appealed to this Court.6. Section 34 (1) of the Indian Income-tax Act, 1922, as it stood in the Assessment year 1949-50 provided:"If-(a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under Section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed.x x x x x or(b) notwithstanding that there has been no omission or failure as mentioned in Clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been underassessed, x x xhe may in cases falling under Cl (a) at any time within eight years and in cases falling under Cl. (b) at any time within four years of the end of that year, serve on the assessee, x x x x x a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of Section 22, and may proceed to assess or re-assess such income, profits or gains x x x x x"7. The Income-tax Officer had in consequence of information in his possession that the agreement with Ratiram Tansukhrai was a sham transaction reason to believe that income chargeable to tax had escaped assessment. Such a case would however appropriately fall under Section 34 (1) (b). But the period prescribed for serving a notice under Section 34 (1) (b) had elapsed. Under Section 34 (1) (a) the Income-tax Officer had authority to serve a notice when he had reason to believe that by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year, income chargeable to tax had escaped assessment. As observed by this Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta 41 ITR 191 at p. 200 = (AIR 1961 SC 372 at p. 376)."The words used are "omission or failure to disclose fully and truly all material facts necessary for his assessment for that year." It postulates a duty on every assessee to disclose fully and truly all material facts necessary for his assessment. What facts are material and necessary for assessment will differ from case to case. In every assessment proceeding, the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee, or discovered by him on the basis of the facts disclosed, or otherwise, the assessing authority has to draw inferences as regards certain other facts: and ultimately, from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences, and ascertain on a correct interpretation of the taxing enactment, the proper tax leviable."8. We are of the view that under Section 34 (1) (a) if the assessee has disclosed primary facts relevant to the assessment, he is under no obligation to instruct the Income-tax officer about the inference which the Income tax Officer may raise from those facts. The terms of the Explanation to Section 34 (1) also do not impose a more onerous obligation. Mere production of the books of account or other evidence from which material facts could with due diligence have been discovered does not necessarily amount to disclosure within the meaning of Section 34 (1), but where on the evidence and the materials produced the Income-tax Officer could have reached a conclusion other than the one which he has reached, a proceeding under Section 34 (1) (a) will not he merely on the ground that the Income-tax officer has raised an inference which he may later regard as erroneous.9. The assessee had disclosed his books of account and evidence from which material facts could be discovered: it was under no obligation to inform the Income-tax Officer about the possible inferences which may be raised against him. It was for the Income-tax Officer to raise such an inference and if he did not do so the Income which has escaped assessment cannot be brought to lay under Section 34 (1) (a).
### Response:
0
### Explanation:
7. The Income-tax Officer had in consequence of information in his possession that the agreement with Ratiram Tansukhrai was a sham transaction reason to believe that income chargeable to tax had escaped assessment. Such a case would however appropriately fall under Section 34 (1) (b). But the period prescribed for serving a notice under Section 34 (1) (b) had elapsed. Under Section 34 (1) (a) the Income-tax Officer had authority to serve a notice when he had reason to believe that by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the year, income chargeable to tax had escaped assessment.We are of the view that under Section 34 (1) (a) if the assessee has disclosed primary facts relevant to the assessment, he is under no obligation to instruct the Income-tax officer about the inference which the Income tax Officer may raise from those facts. The terms of the Explanation to Section 34 (1) also do not impose a more onerous obligation. Mere production of the books of account or other evidence from which material facts could with due diligence have been discovered does not necessarily amount to disclosure within the meaning of Section 34 (1), but where on the evidence and the materials produced the Income-tax Officer could have reached a conclusion other than the one which he has reached, a proceeding under Section 34 (1) (a) will not he merely on the ground that the Income-tax officer has raised an inference which he may later regard as erroneous.9. The assessee had disclosed his books of account and evidence from which material facts could be discovered: it was under no obligation to inform the Income-tax Officer about the possible inferences which may be raised against him. It was for the Income-tax Officer to raise such an inference and if he did not do so the Income which has escaped assessment cannot be brought to lay under Section 34 (1) (a).
|
TATA HOUSING DEVELOPMENT COMPANY LIMITED Vs. AALOK JAGGA | closure of certain hazardous industries, the directions for closure of slaughterhouse and its relocation, the various directions issued for the protection of the Ridge area in Delhi, the directions for setting up effluent treatment plants to the industries located in Delhi, the directions to tanneries etc., are all judgments which seek to protect the environment. 10. In the matter of enforcement of fundamental rights under Article 21, under public law domain, the Court, in exercise of its powers under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the POLLUTER-PAYS PRINCIPLE which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment. 34. In M.C. Mehta (Badkhal and Surajkund Lakes matter) vs. Union of India and others, (1997) 3 SCC 715 , this Court had observed: 6. Mr. Shanti Bhushan, learned Senior Advocate, appearing for some of the builders had vehemently contended that banning construction within one km radius from Badkhal and Surajkund is arbitrary. According to him, it is not based on technical reasons. He has referred to the directions issued by the Government of India under the Environment Protection Act and has contended that the construction can at the most be banned within 200 to 500 metres as was done by the Government of India in the coastal areas. He has also contended that restriction on construction only in the areas surrounding Surajkund and Badkhal lakes is hit by Article 14 of the Constitution of India as it is not being extended to other lakes in the country. We do not agree with Mr. Shanti Bhushan. The functioning of ecosystems and the status of environment cannot be the same in the country. Preventive measures have to be taken, keeping in view the carrying capacity of the ecosystems operating in the environmental surroundings under consideration. Badkhal and Surajkund lakes are popular tourist resorts almost next door to the capital city of Delhi. We have on record the Inspection Report in respect of these lakes by the National Environmental Engineering Research Institute (NEERI) dated 20-4-1996, indicating the surroundings, geological features, land use, and soil types and archaeological significance of the areas surrounding the lakes. According to the report, Surajkund lake impounds water from rain and natural springs. Badkhal Lake is an impoundment formed due to the construction of an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types, as explained in the report, show that the Badkhal Lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large- scale construction in the vicinity of these tourist resorts may disturb the rainwater drains, which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed. 35. In Indian Council for Enviro-Legal Action vs. Union of India and others, (1996) 5 SCC 281 , this Court has made the following observations: 41. With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some public-spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby seeking to protect the fundamental rights of the citizens is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental-related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The courts, in a way, act as the guardian of the peoples fundamental rights, but in regard to many technical matters, the courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though it is not the function of the Court to see the day-to-day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the courts as of necessity have had to pass orders directing the enforcement agencies to implement the law. 36. In the aforesaid facts and circumstances of the case, considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife sanctuary, in ouropinion, no such project can be allowed to come up in the area in question. The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so. The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. It is clear why Government has not been able to protect the eco-sensitive zone around a Wildlife and has permitted setting up of high-rise buildings up to 92 meters in the area in question, which is not at all permissible. | 1[ds]19. The Notification makes it clear that no new commercial construction of any kind shall be permitted within 0.5 km. from the boundary of protected area or up to the boundary of the eco-sensitive zone. Construction of all types of new buildings and houses up to a distance of 0.5 km. in the zone-I shall be prohibited from 0.5 km. to 1.2 km, construction of low density (ground coverage less than half of the plot size) and low rise building about 15 feet can be permitted20. Given the findings above, recorded by the High Court as to the distance from the Wildlife Sanctuary, we have heard learned counsel for the parties on the issue at length21. It is not in dispute that proposal, which was sent by the Government of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from Sukhna Wildlife Sanctuary, had not been accepted and the direction was issued to resubmit the proposal for at least 1 km Buffer Zone has not been forwarded by State of Punjab23. It was incumbent upon the State of Punjab to send a proposal to the MoEF, as required but it appears that it has not chosen to do so for a reason precious project concerning the MLAs is involved, and MoEF has not accepted its proposal for keeping Buffer Zone to 100 meters. It has also been pointed out from the respondent side that Naya Gaon forms part of the Greater Mohali Region in the State of Punjab. In the statutory, Greater Mohali Area Development Authority, Regional Plan for Greater Mohali Region in paragraph 14.3.1, it has been mentioned that no development is possible within 5 kms buffer distance from existing forest i.e., Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there are several pockets of forests distributed all over the Greater Mohali Region. These have to be conserved, and the buffer zone recommended should be protected against urban development24. It is also clear that 2-2.75 km area has been ordered as eco-sensitive zone by the MoEF and the notification dated 18.1.2017 has been issued as to the adjacent area towards Chandigarh side of the Sukhna Wildlife Sanctuary27. The Directive Principles of State Policy provide that protection and improvement of environment, safeguarding forest and wildlife have been duly enjoined upon the Government. Those principles have found statutory expression in various enactments i.e., Wildlife (Protection) Act, E.P. Act etc., which have been enforced by this Court in various decisions. The inaction of State to constitutional and statutory duties cannot be permitted. The Court has to issue appropriate directions to fulfil the mandate25. The most potent threat faced by the earth and human civilization as a whole which is confronted with, today, is environmental degradation and wildlife degeneration. The need to protect flora and fauna which constitutes a major portion of our ecosystem is immediate. Development and urbanization coming at the cost of adversely affecting our natural surroundings will in turn impact and be the cause of human devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala. The climate change is impacting wildlife by disrupting the timing of natural events. With warmer temperatures, flowering plants are blooming earlier in the year and migratory birds are returning from their wintering grounds earlier in the spring. Wildlife conservation in India has a long history, dating back to the colonial period when it was rather very restrictive to only targeted species and that too in a defined geographical area. Then, the formation of the Wildlife Board at the national level and enactment of Wildlife Act in 1972 laid the foundation of present day wildlife conservation era in post-independent India. Project Tiger in the 1970s and the Project Elephant in 1992–both with flagship species–attracted global attention. India then also became a member of all major international conservation treaties related to habitat, species and environment like Ramsar Convention, 1971; Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973; Convention on Migratory Species, 1979; Convention on Biological Diversity, 1992, among others26. The human as well as the wildlife are completely dependent upon environment for their survival. Human is completely dependent on the environment. Like the human, the wild life is also dependent on the environment for its survival and also get effected by the environment. The relationship between the human and animal can be understood by the food-chain and food-web. The wildlife is affected by several reasons such as population, deforestation, urbanization, high number of industries, chemical effluents, unplanned land-use policies, and reckless use of natural resources etc. | 1 | 9,726 | 843 | ### 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:
closure of certain hazardous industries, the directions for closure of slaughterhouse and its relocation, the various directions issued for the protection of the Ridge area in Delhi, the directions for setting up effluent treatment plants to the industries located in Delhi, the directions to tanneries etc., are all judgments which seek to protect the environment. 10. In the matter of enforcement of fundamental rights under Article 21, under public law domain, the Court, in exercise of its powers under Article 32 of the Constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. The Court while awarding damages also enforces the POLLUTER-PAYS PRINCIPLE which is widely accepted as a means of paying for the cost of pollution and control. To put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment. 34. In M.C. Mehta (Badkhal and Surajkund Lakes matter) vs. Union of India and others, (1997) 3 SCC 715 , this Court had observed: 6. Mr. Shanti Bhushan, learned Senior Advocate, appearing for some of the builders had vehemently contended that banning construction within one km radius from Badkhal and Surajkund is arbitrary. According to him, it is not based on technical reasons. He has referred to the directions issued by the Government of India under the Environment Protection Act and has contended that the construction can at the most be banned within 200 to 500 metres as was done by the Government of India in the coastal areas. He has also contended that restriction on construction only in the areas surrounding Surajkund and Badkhal lakes is hit by Article 14 of the Constitution of India as it is not being extended to other lakes in the country. We do not agree with Mr. Shanti Bhushan. The functioning of ecosystems and the status of environment cannot be the same in the country. Preventive measures have to be taken, keeping in view the carrying capacity of the ecosystems operating in the environmental surroundings under consideration. Badkhal and Surajkund lakes are popular tourist resorts almost next door to the capital city of Delhi. We have on record the Inspection Report in respect of these lakes by the National Environmental Engineering Research Institute (NEERI) dated 20-4-1996, indicating the surroundings, geological features, land use, and soil types and archaeological significance of the areas surrounding the lakes. According to the report, Surajkund lake impounds water from rain and natural springs. Badkhal Lake is an impoundment formed due to the construction of an earthen dam. The catchment areas of these lakes are shown in a figure attached with the report. The land use and soil types, as explained in the report, show that the Badkhal Lake and Surajkund are monsoon-fed water bodies. The natural drainage pattern of the surrounding hill areas feed these water bodies during rainy season. Large- scale construction in the vicinity of these tourist resorts may disturb the rainwater drains, which in turn may badly affect the water level as well as the water quality of these water bodies. It may also cause disturbance to the aquifers which are the source of ground water. The hydrology of the area may also be disturbed. 35. In Indian Council for Enviro-Legal Action vs. Union of India and others, (1996) 5 SCC 281 , this Court has made the following observations: 41. With rapid industrialisation taking place, there is an increasing threat to the maintenance of the ecological balance. The general public is becoming aware of the need to protect environment. Even though laws have been passed for the protection of environment, the enforcement of the same has been tardy, to say the least. With the governmental authorities not showing any concern with the enforcement of the said Acts, and with the development taking place for personal gains at the expense of environment and with disregard of the mandatory provisions of law, some public-spirited persons have been initiating public interest litigations. The legal position relating to the exercise of jurisdiction by the courts for preventing environmental degradation and thereby seeking to protect the fundamental rights of the citizens is now well settled by various decisions of this Court. The primary effort of the Court, while dealing with the environmental-related issues, is to see that the enforcement agencies, whether it be the State or any other authority, take effective steps for the enforcement of the laws. The courts, in a way, act as the guardian of the peoples fundamental rights, but in regard to many technical matters, the courts may not be fully equipped. Perforce, it has to rely on outside agencies for reports and recommendations whereupon orders have been passed from time to time. Even though it is not the function of the Court to see the day-to-day enforcement of the law, that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the courts as of necessity have had to pass orders directing the enforcement agencies to implement the law. 36. In the aforesaid facts and circumstances of the case, considering the distance of 123 meters from the Northern side and 183 meters from the Eastern side of the project in question from wildlife sanctuary, in ouropinion, no such project can be allowed to come up in the area in question. The State of Punjab was required to act on the basis of Doctrine of Public Trust. It has failed to do so. The origination of the project itself indicates that State of Punjab was not acting in furtherance of Doctrine of Public Trust as 95 MLAs were to be the recipients of the flats. It is clear why Government has not been able to protect the eco-sensitive zone around a Wildlife and has permitted setting up of high-rise buildings up to 92 meters in the area in question, which is not at all permissible.
### Response:
1
### Explanation:
19. The Notification makes it clear that no new commercial construction of any kind shall be permitted within 0.5 km. from the boundary of protected area or up to the boundary of the eco-sensitive zone. Construction of all types of new buildings and houses up to a distance of 0.5 km. in the zone-I shall be prohibited from 0.5 km. to 1.2 km, construction of low density (ground coverage less than half of the plot size) and low rise building about 15 feet can be permitted20. Given the findings above, recorded by the High Court as to the distance from the Wildlife Sanctuary, we have heard learned counsel for the parties on the issue at length21. It is not in dispute that proposal, which was sent by the Government of Punjab to the MoEF, to keep the Buffer Zone within 100 meters from Sukhna Wildlife Sanctuary, had not been accepted and the direction was issued to resubmit the proposal for at least 1 km Buffer Zone has not been forwarded by State of Punjab23. It was incumbent upon the State of Punjab to send a proposal to the MoEF, as required but it appears that it has not chosen to do so for a reason precious project concerning the MLAs is involved, and MoEF has not accepted its proposal for keeping Buffer Zone to 100 meters. It has also been pointed out from the respondent side that Naya Gaon forms part of the Greater Mohali Region in the State of Punjab. In the statutory, Greater Mohali Area Development Authority, Regional Plan for Greater Mohali Region in paragraph 14.3.1, it has been mentioned that no development is possible within 5 kms buffer distance from existing forest i.e., Sukhna Wildlife Sanctuary. Thus, apart from Shivalik there are several pockets of forests distributed all over the Greater Mohali Region. These have to be conserved, and the buffer zone recommended should be protected against urban development24. It is also clear that 2-2.75 km area has been ordered as eco-sensitive zone by the MoEF and the notification dated 18.1.2017 has been issued as to the adjacent area towards Chandigarh side of the Sukhna Wildlife Sanctuary27. The Directive Principles of State Policy provide that protection and improvement of environment, safeguarding forest and wildlife have been duly enjoined upon the Government. Those principles have found statutory expression in various enactments i.e., Wildlife (Protection) Act, E.P. Act etc., which have been enforced by this Court in various decisions. The inaction of State to constitutional and statutory duties cannot be permitted. The Court has to issue appropriate directions to fulfil the mandate25. The most potent threat faced by the earth and human civilization as a whole which is confronted with, today, is environmental degradation and wildlife degeneration. The need to protect flora and fauna which constitutes a major portion of our ecosystem is immediate. Development and urbanization coming at the cost of adversely affecting our natural surroundings will in turn impact and be the cause of human devastation as was seen in the 2013 floods in Uttarakhand and in 2018 in Kerala. The climate change is impacting wildlife by disrupting the timing of natural events. With warmer temperatures, flowering plants are blooming earlier in the year and migratory birds are returning from their wintering grounds earlier in the spring. Wildlife conservation in India has a long history, dating back to the colonial period when it was rather very restrictive to only targeted species and that too in a defined geographical area. Then, the formation of the Wildlife Board at the national level and enactment of Wildlife Act in 1972 laid the foundation of present day wildlife conservation era in post-independent India. Project Tiger in the 1970s and the Project Elephant in 1992–both with flagship species–attracted global attention. India then also became a member of all major international conservation treaties related to habitat, species and environment like Ramsar Convention, 1971; Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973; Convention on Migratory Species, 1979; Convention on Biological Diversity, 1992, among others26. The human as well as the wildlife are completely dependent upon environment for their survival. Human is completely dependent on the environment. Like the human, the wild life is also dependent on the environment for its survival and also get effected by the environment. The relationship between the human and animal can be understood by the food-chain and food-web. The wildlife is affected by several reasons such as population, deforestation, urbanization, high number of industries, chemical effluents, unplanned land-use policies, and reckless use of natural resources etc.
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DR.D.J.DE SOUZA Vs. MANAGING DIRECTOR CPC DIAGOSTICS PVT.LTD | Hemant Gupta J.1. Leave granted.2. The challenge in the present appeals is to a judgment and order passed by the National Consumer Disputes Redressal Commission NCDRC on 14.12.2017 and also an order in Review Petition passed on 04.10.2018.3. The appellant placed an order for purchase of TurboChem 100 Unit in response to quotation submitted by the respondent in the second week of August 2015. The appellant remitted a sum of Rs. 3, 50, 000/- towards 50 per cent cost of the instrument. The pre-installation requisite contemplated the following conditions:"1. Pre-installation Customer has to Requisite provide the following: Efficiently air-conditioned room 1 KVA online UPS for running of the equipment. Broadband connection for ?i-track?(Remote diagnostics Tool) The equipment will be provided with ?i-track? Remote, facility at the time of installation.?4. The equipment was delivered on 30.09.2015. The service engineer pointed out that 1000 mv/650 Watt UPS of APC Company was not suitable and the appellant was advised to purchase 1KVA Online UPS for usage during power failure. The stand of the appellant is that he has got a confirmation from M/s. Awareness Technologies USA, the manufacturer of the equipment that UPS which the appellant had is suitable but the respondent insisted on installation of 1KVA Online UPS. The appellant also raised a grievance that there is no on-board laundry facility present on the instrument, therefore, such instrument is of no use to him. Therefore, the appellant sought payment of Rs. 3, 50, 000/- along with 9 per cent interest as well as damages of Rs. 50, 000/-.5. The District Consumer Disputes Redressal Forum, South Goa at Margao District Forum dismissed the complaint inter alia on the ground that the appellant has not placed copy of the order in support of his plea that on-board laundry was a part of the equipment. Since, there was no commitment on the part of the respondent to supply on-board laundry facility, the complaint was dismissed. Aggrieved against the order passed by the District Forum, the appellant filed an appeal before the Goa State Consumer Disputes Redressal Commission State Commission. The said appeal was dismissed on 08.07.2016 when his argument that the respondent has indulged in restrictive unfair trade practice, was not accepted. It was argued that the appellant had one 1KVA UPS purchased on 19.10.2015 but the respondent insisted on installation of Online UPS. The appellant referred to his correspondence with the manufacturer in USA that UPS purchased by the appellant is good provided that the instrument is the only item hooked up to the UPS.6. The State Commission found that the appellant placed an order when the respondent communicated their best offer for Turbochem 100 fully Automated Random-Access Biochemistry Analyser and also enclosed brochure for reference. It is thereafter, the 50 per cent of the price was paid. In the brochure there is mention of on-board cooling facility as one of the features but there is no feature of on-board laundry facility. There is a specific mention of requirement of 1 KVA Online UPS for running of the equipment. In view of said facts, the learned State Commission dismissed the appeal. The further challenge by way of a Revision before the NCDRC remained unsuccessful. The NCDRC found that there is no commitment from the respondent about the supply of instrument with on-board laundry facility and that the appellant has failed to establish that there was any malfunctioning or manufacturing defect in the instrument.7. It was also mentioned that the performance of the instrument depends upon the continuous uninterrupted electricity supply which could be made available through Online UPS. It was advisable to install best quality Online UPS keeping in view the fluctuation in electricity supply in the country.8. Before this Court, the appellant argued that the manufacturer of the instrument in USA vide an email as Annexure P-10, has communicated that the UPS purchased by the appellant will be good, provided the TurboChem 100 is the only item hooked up to the UPS. Therefore, the insistence of the respondent for installation of 1KVA Online UPS is arbitrary and is restrictive trade practice.9. We have heard the appellant and find no merit in the present appeals. The pre-installation requisite as reproduced above clearly stipulates that the appellant has to provide: (i) Efficiently air-conditioned room (ii) 1KVA Online UPS for running of the equipment (iii) Broadband connection for ?i-track? (Remote Diagnostics Tool). The equipment will be provided with ?i-track? remote facility at the time of installation.10. In the brochure supplied to the appellant, there is no commitment of supply of instrument with on-board laundry facility. Thus, the appellant could not insist on on-board laundry facility which was never committed to be delivered to the appellant along with the instrument nor there could be any installation of the equipment without installation of 1KVA Online UPS as part of pre-installation requirements. The email from the manufacturer will not override the pre-conditions of installation which are in view of electricity supply conditions in the country. All the authorities under the Consumer Protection Act, 1986 4 have found that there is no deficiency in service or restrictive trade practice. | 0[ds]9. We have heard the appellant and find no merit in the present appeals. The pre-installation requisite as reproduced above clearly stipulates that the appellant has to provide: (i) Efficiently air-conditioned room (ii) 1KVA Online UPS for running of the equipment (iii) Broadband connection for ?i-track? (Remote Diagnostics Tool). The equipment will be provided with ?i-track? remote facility at the time of installation.10. In the brochure supplied to the appellant, there is no commitment of supply of instrument with on-board laundry facility. Thus, the appellant could not insist on on-board laundry facility which was never committed to be delivered to the appellant along with the instrument nor there could be any installation of the equipment without installation of 1KVA Online UPS as part of pre-installation requirements. The email from the manufacturer will not override the pre-conditions of installation which are in view of electricity supply conditions in the country. All the authorities under the Consumer Protection Act, 1986 4 have found that there is no deficiency in service or restrictive trade practice. | 0 | 940 | 200 | ### 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:
Hemant Gupta J.1. Leave granted.2. The challenge in the present appeals is to a judgment and order passed by the National Consumer Disputes Redressal Commission NCDRC on 14.12.2017 and also an order in Review Petition passed on 04.10.2018.3. The appellant placed an order for purchase of TurboChem 100 Unit in response to quotation submitted by the respondent in the second week of August 2015. The appellant remitted a sum of Rs. 3, 50, 000/- towards 50 per cent cost of the instrument. The pre-installation requisite contemplated the following conditions:"1. Pre-installation Customer has to Requisite provide the following: Efficiently air-conditioned room 1 KVA online UPS for running of the equipment. Broadband connection for ?i-track?(Remote diagnostics Tool) The equipment will be provided with ?i-track? Remote, facility at the time of installation.?4. The equipment was delivered on 30.09.2015. The service engineer pointed out that 1000 mv/650 Watt UPS of APC Company was not suitable and the appellant was advised to purchase 1KVA Online UPS for usage during power failure. The stand of the appellant is that he has got a confirmation from M/s. Awareness Technologies USA, the manufacturer of the equipment that UPS which the appellant had is suitable but the respondent insisted on installation of 1KVA Online UPS. The appellant also raised a grievance that there is no on-board laundry facility present on the instrument, therefore, such instrument is of no use to him. Therefore, the appellant sought payment of Rs. 3, 50, 000/- along with 9 per cent interest as well as damages of Rs. 50, 000/-.5. The District Consumer Disputes Redressal Forum, South Goa at Margao District Forum dismissed the complaint inter alia on the ground that the appellant has not placed copy of the order in support of his plea that on-board laundry was a part of the equipment. Since, there was no commitment on the part of the respondent to supply on-board laundry facility, the complaint was dismissed. Aggrieved against the order passed by the District Forum, the appellant filed an appeal before the Goa State Consumer Disputes Redressal Commission State Commission. The said appeal was dismissed on 08.07.2016 when his argument that the respondent has indulged in restrictive unfair trade practice, was not accepted. It was argued that the appellant had one 1KVA UPS purchased on 19.10.2015 but the respondent insisted on installation of Online UPS. The appellant referred to his correspondence with the manufacturer in USA that UPS purchased by the appellant is good provided that the instrument is the only item hooked up to the UPS.6. The State Commission found that the appellant placed an order when the respondent communicated their best offer for Turbochem 100 fully Automated Random-Access Biochemistry Analyser and also enclosed brochure for reference. It is thereafter, the 50 per cent of the price was paid. In the brochure there is mention of on-board cooling facility as one of the features but there is no feature of on-board laundry facility. There is a specific mention of requirement of 1 KVA Online UPS for running of the equipment. In view of said facts, the learned State Commission dismissed the appeal. The further challenge by way of a Revision before the NCDRC remained unsuccessful. The NCDRC found that there is no commitment from the respondent about the supply of instrument with on-board laundry facility and that the appellant has failed to establish that there was any malfunctioning or manufacturing defect in the instrument.7. It was also mentioned that the performance of the instrument depends upon the continuous uninterrupted electricity supply which could be made available through Online UPS. It was advisable to install best quality Online UPS keeping in view the fluctuation in electricity supply in the country.8. Before this Court, the appellant argued that the manufacturer of the instrument in USA vide an email as Annexure P-10, has communicated that the UPS purchased by the appellant will be good, provided the TurboChem 100 is the only item hooked up to the UPS. Therefore, the insistence of the respondent for installation of 1KVA Online UPS is arbitrary and is restrictive trade practice.9. We have heard the appellant and find no merit in the present appeals. The pre-installation requisite as reproduced above clearly stipulates that the appellant has to provide: (i) Efficiently air-conditioned room (ii) 1KVA Online UPS for running of the equipment (iii) Broadband connection for ?i-track? (Remote Diagnostics Tool). The equipment will be provided with ?i-track? remote facility at the time of installation.10. In the brochure supplied to the appellant, there is no commitment of supply of instrument with on-board laundry facility. Thus, the appellant could not insist on on-board laundry facility which was never committed to be delivered to the appellant along with the instrument nor there could be any installation of the equipment without installation of 1KVA Online UPS as part of pre-installation requirements. The email from the manufacturer will not override the pre-conditions of installation which are in view of electricity supply conditions in the country. All the authorities under the Consumer Protection Act, 1986 4 have found that there is no deficiency in service or restrictive trade practice.
### Response:
0
### Explanation:
9. We have heard the appellant and find no merit in the present appeals. The pre-installation requisite as reproduced above clearly stipulates that the appellant has to provide: (i) Efficiently air-conditioned room (ii) 1KVA Online UPS for running of the equipment (iii) Broadband connection for ?i-track? (Remote Diagnostics Tool). The equipment will be provided with ?i-track? remote facility at the time of installation.10. In the brochure supplied to the appellant, there is no commitment of supply of instrument with on-board laundry facility. Thus, the appellant could not insist on on-board laundry facility which was never committed to be delivered to the appellant along with the instrument nor there could be any installation of the equipment without installation of 1KVA Online UPS as part of pre-installation requirements. The email from the manufacturer will not override the pre-conditions of installation which are in view of electricity supply conditions in the country. All the authorities under the Consumer Protection Act, 1986 4 have found that there is no deficiency in service or restrictive trade practice.
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Assambrook Limited Vs. Krishen Kumar Kapoor and Others | conceived in the interest of other corporate bodies in whom the majority shareholders of this company are interested. It is submitted that the purchase of four tea estates was not a prudent measure inasmuch as the title of the vendors to all the four estates is under a cloud and litigation is pending in that behalf. Fraud is attributed to the board of directors of the appellant-company. It is pointed out that the financial institutions stand to lose by subscribing to the said offer. It is emphasised that even a single shareholder of the company is entitled to challenge any action of the company which is ultra vires the company (i.e., contrary to the memorandum and articles of association of the company) or is contrary to law or is vitiated by fraud. Learned counsel submitted that the several orders impugned in these appeals are only interlocutory orders subject to further and final orders of the Calcutta High Court and at this stage this court ought not to interfere under article 136 of the Constitution but must relegate the parties to the Calcutta High Court to seek appropriate orders according to law. In reply, counsel for the appellant-company submitted that the appellant-company is one of best managed companies and that for the last few years it has been declaring a dividend at 40 per cent. and more every year and that its shares are being quoted on the stock exchange at more than Rs. 100 per share even during the months of September and October, 1992 (i.e., even after the recent crash following revelation of certain irregularities in the matter of Government securities). It is argued that the offer is highly advantageous to the shareholders and it is for this reason that even financial institutions like the Life Insurance Corporation of India have already accepted the offer and remitted the appropriate amount.In view of the fact that the suits and writs are pending in the Calcutta High Court and the Alipore District Court, which have to be tried and finally disposed of by those courts, we desist from expressing any opinion on the rival contentions urged by the appellant-company and the respondents. At the same time, we are of the opinion that appropriate orders ought to be passed in the interest of the company, its shareholders and in the interest of justice. On a consideration of the several aspects of the matter, we are of the opinion that the order passed by A. N. Ray J. on December 6, 1992, was a proper order to make in the circumstances. Accordingly, we affirm and restore the said order. We set aside the order dated December 21, 1992, passed by the Division Bench in appeal against the said order. We further make absolute the order passed by S.C. Agrawal J. on December 25, 1992, in S.L.P. No. 17415 of 1992 subject to the following modification : The appellant-company is permitted to pay off the debts due to the banks and public financial institutions only from out of the monies raised by the said offer. So far as the repayment of the debts allegedly raised from certain other corporate bodies (referred to by the appellant as unsecured loans) are concerned, the question whether the money raised by the offer should be utilised for payment to the said corporate bodies or not shall be decided by the Calcutta High Court in the suit filed by Sri Krishen Kumar Kapoor. Since the appellant is complaining that it is being obliged to pay a substantial amount by way of interest on the amounts borrowed by it for acquiring the said estates, we think that it would be appropriate if the Calcutta High Court passes orders in this behalf as expeditiously as possible preferably within three weeks from today. For a period of three weeks, the direction made by S.C. Agrawal J. (on December 25, 1992) to the effect that the appellant-company shall not utilise the funds collected as a result of the issue of convertible debentures---shall remain operative subject to the above modification. All parties to file their affidavits within one week from today before the High Court.So far as the request of learned counsel for the appellant regarding extension of the date of closure of the offer is concerned, we are not inclined to pass any orders at this stage. Counsel for the appellant relies upon the guidelines issued by the Securities and Exchange Board of India which say that such offer cannot be extended beyond 60 days from the date of issue and that any violation of the said guidelines would expose the company to prosecution and other sanctions. The argument of the appellants counsel is that inasmuch as the court had interdicted the operation of the said offer, the court itself, including this court, should rectify the same on the principle that " an act of court should prejudice no one ". May be there is some justification in the said argument but that is a matter for the appropriate authorities, who are competent to extend the said date or who are empowered to take action for violation of the said guidelines, to consider. It may also be a matter for the High Court to consider in the matter pending before it in this behalf. Suffice it to say that at this juncture we do not wish to pass any orders on the said request. The appellants are free to move the court or other competent authority in this behalf.Learned counsel for the Life Insurance Corporation has brought to our notice that the Life Insurance Corporation decided to accept the offer made by the appellant-company and has accordingly remitted the appropriate amount on December 26, 1992, itself.Before parting with this matter, we must refer to a grievance made by Sri Govinda Mukhoty, learned counsel for Sri Ashok Singh. He complained that this court should not pass orders even before his client had an opportunity of filing a counter to S.L.P. No. 148 of 1993. | 1[ds]In view of the fact that the suits and writs are pending in the Calcutta High Court and the Alipore District Court, which have to be tried and finally disposed of by those courts, we desist from expressing any opinion on the rival contentions urged by theand the respondents. At the same time, we are of the opinion that appropriate orders ought to be passed in the interest of the company, its shareholders and in the interest of justice. On a consideration of the several aspects of the matter, we are of the opinion that the order passed by A. N. Ray J. on December 6, 1992, was a proper order to make in the circumstances. Accordingly, we affirm and restore the said order. We set aside the order dated December 21, 1992, passed by the Division Bench in appeal against the said order. We further make absolute the order passed by S.C. Agrawal J. on December 25, 1992, in S.L.P. No. 17415 of 1992 subject to the following modification : Theis permitted to pay off the debts due to the banks and public financial institutions only from out of the monies raised by the said offer. So far as the repayment of the debts allegedly raised from certain other corporate bodies (referred to by the appellant as unsecured loans) are concerned, the question whether the money raised by the offer should be utilised for payment to the said corporate bodies or not shall be decided by the Calcutta High Court in the suit filed by Sri Krishen Kumar Kapoor. Since the appellant is complaining that it is being obliged to pay a substantial amount by way of interest on the amounts borrowed by it for acquiring the said estates, we think that it would be appropriate if the Calcutta High Court passes orders in this behalf as expeditiously as possible preferably within three weeks from today. For a period of three weeks, the direction made by S.C. Agrawal J. (on December 25, 1992) to the effect that theshall not utilise the funds collected as a result of the issue of convertibleremain operative subject to the above modification. All parties to file their affidavits within one week from today before the High Court.So far as the request of learned counsel for the appellant regarding extension of the date of closure of the offer is concerned, we are not inclined to pass any orders at this stage. Counsel for the appellant relies upon the guidelines issued by the Securities and Exchange Board of India which say that such offer cannot be extended beyond 60 days from the date of issue and that any violation of the said guidelines would expose the company to prosecution and other sanctions. The argument of the appellants counsel is that inasmuch as the court had interdicted the operation of the said offer, the court itself, including this court, should rectify the same on the principle that " an act of court should prejudice no one ". May be there is some justification in the said argument but that is a matter for the appropriate authorities, who are competent to extend the said date or who are empowered to take action for violation of the said guidelines, to consider. It may also be a matter for the High Court to consider in the matter pending before it in this behalf. Suffice it to say that at this juncture we do not wish to pass any orders on the said request. The appellants are free to move the court or other competent authority in this behalf.Learned counsel for the Life Insurance Corporation has brought to our notice that the Life Insurance Corporation decided to accept the offer made by theand has accordingly remitted the appropriate amount on December 26, 1992, itself.Before parting with this matter, we must refer to a grievance made by Sri Govinda Mukhoty, learned counsel for Sri Ashok Singh. He complained that this court should not pass orders even before his client had an opportunity of filing a counter to S.L.P. No. 148 of 1993. | 1 | 3,742 | 737 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
conceived in the interest of other corporate bodies in whom the majority shareholders of this company are interested. It is submitted that the purchase of four tea estates was not a prudent measure inasmuch as the title of the vendors to all the four estates is under a cloud and litigation is pending in that behalf. Fraud is attributed to the board of directors of the appellant-company. It is pointed out that the financial institutions stand to lose by subscribing to the said offer. It is emphasised that even a single shareholder of the company is entitled to challenge any action of the company which is ultra vires the company (i.e., contrary to the memorandum and articles of association of the company) or is contrary to law or is vitiated by fraud. Learned counsel submitted that the several orders impugned in these appeals are only interlocutory orders subject to further and final orders of the Calcutta High Court and at this stage this court ought not to interfere under article 136 of the Constitution but must relegate the parties to the Calcutta High Court to seek appropriate orders according to law. In reply, counsel for the appellant-company submitted that the appellant-company is one of best managed companies and that for the last few years it has been declaring a dividend at 40 per cent. and more every year and that its shares are being quoted on the stock exchange at more than Rs. 100 per share even during the months of September and October, 1992 (i.e., even after the recent crash following revelation of certain irregularities in the matter of Government securities). It is argued that the offer is highly advantageous to the shareholders and it is for this reason that even financial institutions like the Life Insurance Corporation of India have already accepted the offer and remitted the appropriate amount.In view of the fact that the suits and writs are pending in the Calcutta High Court and the Alipore District Court, which have to be tried and finally disposed of by those courts, we desist from expressing any opinion on the rival contentions urged by the appellant-company and the respondents. At the same time, we are of the opinion that appropriate orders ought to be passed in the interest of the company, its shareholders and in the interest of justice. On a consideration of the several aspects of the matter, we are of the opinion that the order passed by A. N. Ray J. on December 6, 1992, was a proper order to make in the circumstances. Accordingly, we affirm and restore the said order. We set aside the order dated December 21, 1992, passed by the Division Bench in appeal against the said order. We further make absolute the order passed by S.C. Agrawal J. on December 25, 1992, in S.L.P. No. 17415 of 1992 subject to the following modification : The appellant-company is permitted to pay off the debts due to the banks and public financial institutions only from out of the monies raised by the said offer. So far as the repayment of the debts allegedly raised from certain other corporate bodies (referred to by the appellant as unsecured loans) are concerned, the question whether the money raised by the offer should be utilised for payment to the said corporate bodies or not shall be decided by the Calcutta High Court in the suit filed by Sri Krishen Kumar Kapoor. Since the appellant is complaining that it is being obliged to pay a substantial amount by way of interest on the amounts borrowed by it for acquiring the said estates, we think that it would be appropriate if the Calcutta High Court passes orders in this behalf as expeditiously as possible preferably within three weeks from today. For a period of three weeks, the direction made by S.C. Agrawal J. (on December 25, 1992) to the effect that the appellant-company shall not utilise the funds collected as a result of the issue of convertible debentures---shall remain operative subject to the above modification. All parties to file their affidavits within one week from today before the High Court.So far as the request of learned counsel for the appellant regarding extension of the date of closure of the offer is concerned, we are not inclined to pass any orders at this stage. Counsel for the appellant relies upon the guidelines issued by the Securities and Exchange Board of India which say that such offer cannot be extended beyond 60 days from the date of issue and that any violation of the said guidelines would expose the company to prosecution and other sanctions. The argument of the appellants counsel is that inasmuch as the court had interdicted the operation of the said offer, the court itself, including this court, should rectify the same on the principle that " an act of court should prejudice no one ". May be there is some justification in the said argument but that is a matter for the appropriate authorities, who are competent to extend the said date or who are empowered to take action for violation of the said guidelines, to consider. It may also be a matter for the High Court to consider in the matter pending before it in this behalf. Suffice it to say that at this juncture we do not wish to pass any orders on the said request. The appellants are free to move the court or other competent authority in this behalf.Learned counsel for the Life Insurance Corporation has brought to our notice that the Life Insurance Corporation decided to accept the offer made by the appellant-company and has accordingly remitted the appropriate amount on December 26, 1992, itself.Before parting with this matter, we must refer to a grievance made by Sri Govinda Mukhoty, learned counsel for Sri Ashok Singh. He complained that this court should not pass orders even before his client had an opportunity of filing a counter to S.L.P. No. 148 of 1993.
### Response:
1
### Explanation:
In view of the fact that the suits and writs are pending in the Calcutta High Court and the Alipore District Court, which have to be tried and finally disposed of by those courts, we desist from expressing any opinion on the rival contentions urged by theand the respondents. At the same time, we are of the opinion that appropriate orders ought to be passed in the interest of the company, its shareholders and in the interest of justice. On a consideration of the several aspects of the matter, we are of the opinion that the order passed by A. N. Ray J. on December 6, 1992, was a proper order to make in the circumstances. Accordingly, we affirm and restore the said order. We set aside the order dated December 21, 1992, passed by the Division Bench in appeal against the said order. We further make absolute the order passed by S.C. Agrawal J. on December 25, 1992, in S.L.P. No. 17415 of 1992 subject to the following modification : Theis permitted to pay off the debts due to the banks and public financial institutions only from out of the monies raised by the said offer. So far as the repayment of the debts allegedly raised from certain other corporate bodies (referred to by the appellant as unsecured loans) are concerned, the question whether the money raised by the offer should be utilised for payment to the said corporate bodies or not shall be decided by the Calcutta High Court in the suit filed by Sri Krishen Kumar Kapoor. Since the appellant is complaining that it is being obliged to pay a substantial amount by way of interest on the amounts borrowed by it for acquiring the said estates, we think that it would be appropriate if the Calcutta High Court passes orders in this behalf as expeditiously as possible preferably within three weeks from today. For a period of three weeks, the direction made by S.C. Agrawal J. (on December 25, 1992) to the effect that theshall not utilise the funds collected as a result of the issue of convertibleremain operative subject to the above modification. All parties to file their affidavits within one week from today before the High Court.So far as the request of learned counsel for the appellant regarding extension of the date of closure of the offer is concerned, we are not inclined to pass any orders at this stage. Counsel for the appellant relies upon the guidelines issued by the Securities and Exchange Board of India which say that such offer cannot be extended beyond 60 days from the date of issue and that any violation of the said guidelines would expose the company to prosecution and other sanctions. The argument of the appellants counsel is that inasmuch as the court had interdicted the operation of the said offer, the court itself, including this court, should rectify the same on the principle that " an act of court should prejudice no one ". May be there is some justification in the said argument but that is a matter for the appropriate authorities, who are competent to extend the said date or who are empowered to take action for violation of the said guidelines, to consider. It may also be a matter for the High Court to consider in the matter pending before it in this behalf. Suffice it to say that at this juncture we do not wish to pass any orders on the said request. The appellants are free to move the court or other competent authority in this behalf.Learned counsel for the Life Insurance Corporation has brought to our notice that the Life Insurance Corporation decided to accept the offer made by theand has accordingly remitted the appropriate amount on December 26, 1992, itself.Before parting with this matter, we must refer to a grievance made by Sri Govinda Mukhoty, learned counsel for Sri Ashok Singh. He complained that this court should not pass orders even before his client had an opportunity of filing a counter to S.L.P. No. 148 of 1993.
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Mst. Jadao Bahuji Vs. Municipal Committee, Khandwa And Another | adopted the line of reasoning of minority view in the High Court. He pointed out that S. 142-A was enacted to achieve three purposes. The first was that it removed doubts whether the charge of tax on professions, etc., would be regarded as income-tax. The second was that it put a limit upon the powers of the Provincial Legislature to enact a law imposing a tax in excess of rupees fifty after March 31, 1939; and thirdly it preserved only existing valid laws already in force, which imposed a tax in excess of the amount indicated. He contended that the second sub-section and the proviso covered the entire filed, and a law passed after March 31, 1939, could not freshly impose a tax in excess of the limit and this was such a law. 13. Under the scheme of the Government of India Act, 1955, income-tax, though a Central levy, was, under S. 138(1), distributable among the Provinces and for which an elaborate scheme prepared by Sir Otto Niemyer was accepted and embodied in the Government of India (Distribution of Revenues) Order in Council, 1936. The Centre could levy a surcharge for federal purposes. Taxes on trades, professions and callings, which were taxes already leviable by the Provinces under Sch. II of the Rules made by the Governor-General in Council under S. 80A(3)(a) of the Government of India Act, were also included in the Provincial Legislative List as a source of revenue for the Provinces. It was, however, felt that these taxes might come into clash with tax on income in the Federal List and also if unlimited in amount, might become a second tax on income to be levied by the Provinces. It was to remove these contingencies that S. 142-A was enacted. Sub-section (1) provided that a tax on professions, etc., would not be invalid on the ground that it related to a tax on income. Sub-section (3) was a counterpart of sub-sec. (1), and provided that the generality of the Entry in the Federal Legislative List relating to taxes on income would not be construed as in any way limited by the power of the Provincial Legislature to levy a tax on professions, etc. The fields of the two taxes were thus demarcated. No other implication arises from these two sub-sections. 14. It was also apprehended that under the guise of taxes on professions, etc., the Provincial Legislatures might start their own scheme of a tax on income, thus subjecting incomes from professions, etc., to an additional tax of the nature of income-tax. A limit was, therefore, placed upon the amount which could be collected by way of tax on professions, etc., and that limit was Rs. 50 per annum per person. The second sub-section achieved this result. It was, however, realised that the tax being an old tax, there were laws under which the limit of Rs. 50/- was already exceeded in relation to a province, municipality, board or like authority, and the imposition of such a limit might displace their budgets after March 31, 1939. A proviso was, therefore, added to the second sub-section that if in the financial year ending with thirty-first day of March, nineteen hundred and thirty-nine there was in force in the case of any Province, etc., a tax on professions, trades, callings or employments the rate or the maximum rate of which exceeded Rs. 50/- per annum, the provisions of the second sub-section shall have effect (unless for the time being provision to the contrary was made by a law of the Federal Legislature) as if instead of Rs. 50/- per annum there was substituted a reference to the rate or maximum rate exceeding Rs. 50/-. Where no such law was passed by the Federal Legislature, the tax even in excess of Rs. 50/- continued to be valid. 15. There can be no doubt that if a law was passed after the amendment and sought to impose taxes on professions, etc., for any period after March 31, 1939, it had to conform to the limit prescribed by S. 142A (2).The prohibition in the second sub-section operated to circumscribe the legislative power by putting a date-line after which a tax in excess of Rs. 50/- per annum per person for a period after the date-line could not be collected unless it came within the proviso. But neither sub-sec. (2) nor the proviso speaks of a period prior to March 31, 1939.The sub-section speaks only of the total amount payable ............. after the thirty-first day of March, nineteen hundred and thirty-nine. These words are important. They create a limit on the amount leviable as tax for a period after that date. But if a law was passed validating another which imposed a tax for a period prior to the date indicated, it would be taxing professions, etc., in excess of Rs. 50/- not after March, 1939, but before it. Neither the Entry nor the section either directly or indirectly prohibited this, nor did they create any limit for the prior period. The Validating Act, though passed in 1941, can read only as affecting a period for which there was no limit. If the sub-section said that tax shall not be payable in excess of Rs. 50/- without indicating the period or date, the argument would have some support, but it puts in a date, and the operation of the prohibition is confined to a period after that date. 16. The Validating Act, being thus completely within the powers of the Governor, could remove retrospectively the defect in the earlier Act. Though it reimposed the tax from the date of the earlier Act, it took care to impose the tax for a period ending with March 31, 1938. The impugned Act did not need the support of the proviso, because it did not fall within the ban of the second sub-section. In our opinion, the Validating Act of 1941 was within the powers of the Governor, and was a valid piece of legislation. | 0[ds]10. Retrospective legislation being thus open to the Provincial Legislatures, the Act of the Governor had the same force. Retrospective laws, it has been held, can validate an Act, which contains some defect in its enactment. Examples of Validating Acts which rendered inoperative, decrees or orders of the Court or alternatively made them valid and effective, are many. In Atiqa Begums case, 1940 FCR 110 : (AIR 1941 FC 16) the power of validating defective laws was held to be ancillary and subsidiary to the powers conferred by the Entries and to be included in those powers.Later, the Federal Court in Piare Dusadh v. Emperor, 1943 F LJ 187 : (AIR 1944 FC 1) considered the matter fully, and held that the powers of the Governor-General which were conterminous with those of the Central Legislature included the power of validation. The same can be said of the Provincial Legislatures and also of the Governor acting as a Legislature15. There can be no doubt that if a law was passed after the amendment and sought to impose taxes on professions, etc., for any period after March 31, 1939, it had to conform to the limit prescribed by S. 142A (2).The prohibition in the second sub-section operated to circumscribe the legislative power by putting a date-line after which a tax in excess of Rs. 50/- per annum per person for a period after the date-line could not be collected unless it came within the proviso. But neither sub-sec. (2) nor the proviso speaks of a period prior to March 31, 1939.The sub-section speaks only of the total amount payable ............. after the thirty-first day of March, nineteen hundred and thirty-nine. These words are important. They create a limit on the amount leviable as tax for a period after that date. But if a law was passed validating another which imposed a tax for a period prior to the date indicated, it would be taxing professions, etc., in excess of Rs. 50/- not after March, 1939, but before it. Neither the Entry nor the section either directly or indirectly prohibited this, nor did they create any limit for the prior period. The Validating Act, though passed in 1941, can read only as affecting a period for which there was no limit. If the sub-section said that tax shall not be payable in excess of Rs. 50/- without indicating the period or date, the argument would have some support, but it puts in a date, and the operation of the prohibition is confined to a period after that date16. The Validating Act, being thus completely within the powers of the Governor, could remove retrospectively the defect in the earlier Act. Though it reimposed the tax from the date of the earlier Act, it took care to impose the tax for a period ending with March 31, 1938. The impugned Act did not need the support of the proviso, because it did not fall within the ban of the second sub-section. In our opinion, the Validating Act of 1941 was within the powers of the Governor, and was a valid piece of legislation. | 0 | 3,799 | 587 | ### Instruction:
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adopted the line of reasoning of minority view in the High Court. He pointed out that S. 142-A was enacted to achieve three purposes. The first was that it removed doubts whether the charge of tax on professions, etc., would be regarded as income-tax. The second was that it put a limit upon the powers of the Provincial Legislature to enact a law imposing a tax in excess of rupees fifty after March 31, 1939; and thirdly it preserved only existing valid laws already in force, which imposed a tax in excess of the amount indicated. He contended that the second sub-section and the proviso covered the entire filed, and a law passed after March 31, 1939, could not freshly impose a tax in excess of the limit and this was such a law. 13. Under the scheme of the Government of India Act, 1955, income-tax, though a Central levy, was, under S. 138(1), distributable among the Provinces and for which an elaborate scheme prepared by Sir Otto Niemyer was accepted and embodied in the Government of India (Distribution of Revenues) Order in Council, 1936. The Centre could levy a surcharge for federal purposes. Taxes on trades, professions and callings, which were taxes already leviable by the Provinces under Sch. II of the Rules made by the Governor-General in Council under S. 80A(3)(a) of the Government of India Act, were also included in the Provincial Legislative List as a source of revenue for the Provinces. It was, however, felt that these taxes might come into clash with tax on income in the Federal List and also if unlimited in amount, might become a second tax on income to be levied by the Provinces. It was to remove these contingencies that S. 142-A was enacted. Sub-section (1) provided that a tax on professions, etc., would not be invalid on the ground that it related to a tax on income. Sub-section (3) was a counterpart of sub-sec. (1), and provided that the generality of the Entry in the Federal Legislative List relating to taxes on income would not be construed as in any way limited by the power of the Provincial Legislature to levy a tax on professions, etc. The fields of the two taxes were thus demarcated. No other implication arises from these two sub-sections. 14. It was also apprehended that under the guise of taxes on professions, etc., the Provincial Legislatures might start their own scheme of a tax on income, thus subjecting incomes from professions, etc., to an additional tax of the nature of income-tax. A limit was, therefore, placed upon the amount which could be collected by way of tax on professions, etc., and that limit was Rs. 50 per annum per person. The second sub-section achieved this result. It was, however, realised that the tax being an old tax, there were laws under which the limit of Rs. 50/- was already exceeded in relation to a province, municipality, board or like authority, and the imposition of such a limit might displace their budgets after March 31, 1939. A proviso was, therefore, added to the second sub-section that if in the financial year ending with thirty-first day of March, nineteen hundred and thirty-nine there was in force in the case of any Province, etc., a tax on professions, trades, callings or employments the rate or the maximum rate of which exceeded Rs. 50/- per annum, the provisions of the second sub-section shall have effect (unless for the time being provision to the contrary was made by a law of the Federal Legislature) as if instead of Rs. 50/- per annum there was substituted a reference to the rate or maximum rate exceeding Rs. 50/-. Where no such law was passed by the Federal Legislature, the tax even in excess of Rs. 50/- continued to be valid. 15. There can be no doubt that if a law was passed after the amendment and sought to impose taxes on professions, etc., for any period after March 31, 1939, it had to conform to the limit prescribed by S. 142A (2).The prohibition in the second sub-section operated to circumscribe the legislative power by putting a date-line after which a tax in excess of Rs. 50/- per annum per person for a period after the date-line could not be collected unless it came within the proviso. But neither sub-sec. (2) nor the proviso speaks of a period prior to March 31, 1939.The sub-section speaks only of the total amount payable ............. after the thirty-first day of March, nineteen hundred and thirty-nine. These words are important. They create a limit on the amount leviable as tax for a period after that date. But if a law was passed validating another which imposed a tax for a period prior to the date indicated, it would be taxing professions, etc., in excess of Rs. 50/- not after March, 1939, but before it. Neither the Entry nor the section either directly or indirectly prohibited this, nor did they create any limit for the prior period. The Validating Act, though passed in 1941, can read only as affecting a period for which there was no limit. If the sub-section said that tax shall not be payable in excess of Rs. 50/- without indicating the period or date, the argument would have some support, but it puts in a date, and the operation of the prohibition is confined to a period after that date. 16. The Validating Act, being thus completely within the powers of the Governor, could remove retrospectively the defect in the earlier Act. Though it reimposed the tax from the date of the earlier Act, it took care to impose the tax for a period ending with March 31, 1938. The impugned Act did not need the support of the proviso, because it did not fall within the ban of the second sub-section. In our opinion, the Validating Act of 1941 was within the powers of the Governor, and was a valid piece of legislation.
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10. Retrospective legislation being thus open to the Provincial Legislatures, the Act of the Governor had the same force. Retrospective laws, it has been held, can validate an Act, which contains some defect in its enactment. Examples of Validating Acts which rendered inoperative, decrees or orders of the Court or alternatively made them valid and effective, are many. In Atiqa Begums case, 1940 FCR 110 : (AIR 1941 FC 16) the power of validating defective laws was held to be ancillary and subsidiary to the powers conferred by the Entries and to be included in those powers.Later, the Federal Court in Piare Dusadh v. Emperor, 1943 F LJ 187 : (AIR 1944 FC 1) considered the matter fully, and held that the powers of the Governor-General which were conterminous with those of the Central Legislature included the power of validation. The same can be said of the Provincial Legislatures and also of the Governor acting as a Legislature15. There can be no doubt that if a law was passed after the amendment and sought to impose taxes on professions, etc., for any period after March 31, 1939, it had to conform to the limit prescribed by S. 142A (2).The prohibition in the second sub-section operated to circumscribe the legislative power by putting a date-line after which a tax in excess of Rs. 50/- per annum per person for a period after the date-line could not be collected unless it came within the proviso. But neither sub-sec. (2) nor the proviso speaks of a period prior to March 31, 1939.The sub-section speaks only of the total amount payable ............. after the thirty-first day of March, nineteen hundred and thirty-nine. These words are important. They create a limit on the amount leviable as tax for a period after that date. But if a law was passed validating another which imposed a tax for a period prior to the date indicated, it would be taxing professions, etc., in excess of Rs. 50/- not after March, 1939, but before it. Neither the Entry nor the section either directly or indirectly prohibited this, nor did they create any limit for the prior period. The Validating Act, though passed in 1941, can read only as affecting a period for which there was no limit. If the sub-section said that tax shall not be payable in excess of Rs. 50/- without indicating the period or date, the argument would have some support, but it puts in a date, and the operation of the prohibition is confined to a period after that date16. The Validating Act, being thus completely within the powers of the Governor, could remove retrospectively the defect in the earlier Act. Though it reimposed the tax from the date of the earlier Act, it took care to impose the tax for a period ending with March 31, 1938. The impugned Act did not need the support of the proviso, because it did not fall within the ban of the second sub-section. In our opinion, the Validating Act of 1941 was within the powers of the Governor, and was a valid piece of legislation.
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HIMACHAL PRADESH CRICKET ASSOCIATION & ANR Vs. STATE OF HIMACHAL PRADESH & ORS | be harassed unnecessarily. If the trial is allowed to linger when prima facie it appears to the Court that the trial could likely to be ended in acquittal. It is, for this reason, principle which is laid down by catena of judgments is that the power is to be exercised by the High Court either to prevent abuse of process of any court or otherwise to secure the ends of justice. However, whenever it is found that the case is coming within the four corners of the aforesaid parameters, the powers possessed by the High Court under this provision are very wide. It means that the Court has to undertake the exercise with great caution. However, the High Court is not to be inhibited when the circumstances warrant exercise of such a power to do substantial justice to the parties. This provision has been eloquently discussed in Bhajan Lals case which has become locus classicus. Principle Nos. (i) and (ii) of Indian Oil Corporation are, therefore, become applicable. The entire subject matter has been revisited in a recent judgment in Vineet Kumar and some of the discussion therein which takes note of earlier judgments is reproduced below: 26. A three-Judge Bench in State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] had the occasion to consider the ambit of Section 482 CrPC. By analysing the scope of Section 482 CrPC, this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. The following was laid down in para 6: (SCC p. 94) 6. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 27. Further in para 8 the following was stated: (Devendrappa case [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] , SCC p. 95) 8. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp1 SCC 335 : 1992 SCC (Cri) 426 ]. In the instant case, the High Court simply noted those judgments which put a note of caution in exercising the powers under Section 482 Cr.P.C. to quash such proceedings and dismissed the petition with a shallow examination of the case, thereby glossing over the material facts (which are noted hereinabove) and failing to examine that these pertinent aspects were sufficient to demonstrate that no criminal case was made out, particularly when all the concerned officers, who had taken the decision, were let off on the ground that they had not committed any wrong. 47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated. | 1[ds]32. Before we undertake the exercise of deliberating on the arguments of the counsel for the parties and reach our conclusions, it would be in the fitness of things to recapitulate the events in brief with focus on the allegations of alleged criminality which have been fastened upon the appellants and others. Appellant No. 1 was initially registered as a Society under the Societies Registration Act, 1860 in the year 1990. It is now a not for profit company incorporated under Section 25 of the Companies Act, 1956. One of the allegations pertains to the so-called illegalities committed in the conversion of the society into deemed company under Section 25 of the Companies Act, 1956. Be that as it may, the Society, after its formation, had applied for land at Village Mauja and Tehsil Dharamshala, District Kangra for construction of an international cricket stadium. A proper lease was executed between appellant No. 1 and the State of Himachal Pradesh through Director, Himachal Pradesh Youth Services and Sports Department. It happened more than 16 years ago. In respect of this lease, the allegation is that it was executed at a monthly rent of Re.1/- which was allegedly done to favour the appellants. Admittedly, proviso to Rule 8 of the Rules empowers the State Government to adopt such a course and decision to this effect was taken after due deliberations at a very high level, keeping in view the necessity of such a stadium in the State, which did not have any cricket stadium.33. After the allotment of the land to appellant No. 1, it constructed cricket stadium thereupon. Appellant was desirous of making a world-class cricket stadium which could host international cricket matches as well. For this purpose, it submitted proposal to the ICC. The ICC got the stadium and playground inspected through Mr. Alan Hurst, its match referee. He inspected the stadium and submitted his report dated September 20, 2007. The venue was not approved, at that stage, for hosting international matches. A perusal of the report submitted by the said referee would disclose that there were no adequate hotel facilities in the area and, therefore, tour support was lacking. Two hotels were shown to Mr. Hurst and it was found by him that each of them were at substantial distance from the ground. Moreover, the facilities in the said hotels were also not adequate. Notwithstanding the same, insofar as the cricket ground is concerned, the match referee had lauded it for its quality and settings. It can be seen from the general comments/recommendations/conclusions in his report and the relevant portion whereof reads as under:This ground has one of the best settings imaginable. The people involved in its development have been innovative and are passionate and visionary. They have done a great job so far in getting this ground to where it is and should be congratulated and encouraged. I have no doubt that with adequate finances, in the near future, this ground can become one of the best in the country. The idea of having a hotel as an integral part of the ground with dual use as corporate boxes during games is not new, however, the circular restaurant planned for the top, with 360 deg views of the Himalayas and surrounding area will make it unique. Having said this, I believe that at this stage there is still a lot of work to be done that relates to its suitability for staging International cricket. I am informed that sufficient finance has recently been obtained to complete everything, and further work is now underway. I have listed below the issues I still have concerns with and things that need to be changed. If all of these things are addressed, I would have no hesitation in recommending this ground as suitable as an International ODI venue. The administrators have ensured me that all of these things will be addressed with urgency. They are extremely keen to get into the BCCI ground rotation system as soon as possible.34. It is clear from the above that Mr. Hurst was of the view that the cricket ground at this picturesque place with scenic beauty can be transformed into one of the best cricket grounds in the country, which would be suitable for international events if the deficiencies pointed out therein are taken care of. Apart from providing other facilities to improve the infrastructure (which could be easily taken care of), main concern was to have a hotel as an integral part of the ground with the dual use as corporate boxes during the game. Because of the above, appellant No.1 felt need to construct a club house on the lease land and also seek allotment of some other land for the purpose of construction of a hotel, keeping in view the observations contained in the aforesaid inspection report. Accordingly, it sent request for promotion to construct a club house on the lease land which was accorded by respondent No.1 through Directorate of Youth Services and Sports on June 23, 2008 subject to completing all the formalities.36. Pertinently, insofar as this lease deed is concerned, since the land was to be used for commercial purpose, namely, the club house, it provided rental at commercial rate i.e. the market rate which the appellant No.1 was supposed to pay. After the execution of the lease, club house was constructed and the Town and Country Planning Department, Dharamshala also issued No Objection Certificate for the use of part of infrastructure of cricket stadium as club house for cricket activities. It is also pertinent to mention that Principal Secretary (Revenue), Government of Himachal Pradesh issued no objection for execution of supplementary lease enabling commercial activities on additional land provided that lease money was charged in accordance with the Lease Rules, 2011. This led to execution of supplementary lease deed dated June 23, 2012 on which commercial hotel was constructed after obtaining requisite permissions.37. From the aforesaid events, following aspects can be culled out: Appellant No.1 has been given lease of land on which cricket stadium was constructed and thereafter lease for additional land meant for club house and also supplementary lease for commercial activity i.e. the hotel. It is only in respect of the land which is meant for cricket stadium that rental of Re.1/- per month was agreed to be charged by invoking proviso to Rule 8. Thus, it is not contrary to law. State of Himachal did not have any cricket ground, much less State of art cricket ground. It is, for this reason, that the land was given on lease for the purpose of constructing the cricket ground, which may become pride of Himachal Pradesh, at nominal rental. Insofar as lease in respect of club house and supplementary lease for commercial activity (i.e. hotel) is concerned, the lease money has been fixed in accordance with Lease Rules, 2011, namely, at commercial rates. There can hardly be any element of criminality in the afofresaid allotments inasmuch as six very senior officers in the State Government (four of them of IAS Cadre and one belongs to Himachal Pradesh Administrative Service) who had examined the matter and only after their approval, the allotments were made. There is no culpability attributed to them, which is a very crucial factor.38. What is more important is that the matter was looked into by Director-cum-Special Secretary, Youth Services and Sports Department as well as Secretary, Youth Services and Sports Department and it is only after the examination of the proposal by them and their final approval, lands in question were allotted.40. Insofar as other allegations are concerned, two Officers, namely, Shri R.S. Gupta and Shri Deepak Sanan are implicated. While doing so, other senior Officers who took active part in decision making have not been touched.41. In the two FIRs, seven IAS Officers, one Officer belonging to Himachal Pradesh Administrative Service and one Executive Engineer, Dharamshala Division in Himachal Pradesh PWD Department played their significant role at one stage or the other. Interstingly, in the FIRs, these nine Officers were also implicated and specific role attributed to them which has been already mentioned in the tabulated format while recording the arguments of Mr. Patwalia. This would demonstrate that insofar as Mr. Subhash Ahluwalia (IAS), Director-cum-Special Secretary, Youth Services and Sports Department is concerned, allegation against him was that he ignored the rules and did not mention the provisions of Lease Rules, 1993. He was also signatory to lease deed dated July 29, 2002. It is important to mention that entire FIRs proceed on the basis that appellants conspired with these Officers, among others. The imputation against Mr. Subhash Ahluwalia is that in fixing the rent at Re.1/- per month, he not only ignored the rules and did not even mention in his noting thereby implying that he was party to the alleged conspiracy. Similar allegations are against other eight persons as well alleging their role at different stages. Notwithstanding the same, three Officers, namely, Subhash Ahluwalia, Subhash Negi and T.G. Negi were not even charged on the purported ground that there were not enough evidence and mala fide intention. In respect of Mr. Ajay Sharma, Central Government had declined the sanction. Though, State Government had accorded the sanction for prosecution earlier but it has also later withdrawn. Same is the position in respect of Deepak Sanan. Mr. Gopi Chand, who belongs to HPAS, though the prosecution sanction was granted earlier, in his case also, not only prosecution sanction was withdrawn by the State Government, he has even been promoted to IAS Cadre. In case of Mr. K.K. Pant and Mr. P.C. Dhiman, other IAS Officers, prosecution sanction is declined. This leaves us only Mr. Devi Chand Chauhan, Executive Engineer, Dharamshala Division in PWD, though in his case also, prosecution sanction was earlier rejected but subsequently granted on the recommendation of the then Chief Minister. There are two Gram Panchayat members, who had issued no objection for allotment of land for club house, who have been prosecuted. These three Officers are public servants who remain as accused persons. This Court gets an impression that in the entire conspiracy story put up by the prosecution, high Government officials are deliberately let off and very junior Officers were become scapegoat in order to ensure that a case under PC Act survives in respect of appellants as well who are not public servants. Even otherwise, when the aforesaid eight persons are not charged or proceeded against for want of prosecution, this lends support to the allegations of the appellants in imputing motives for their prosecution.42. This Court, on a 360 scanning of the matter, arrives at the conclusion that the elements of criminal intent or criminal acts are lacking. Following factors do stand established from record:(i) there is no criminal act on their part and the facts do not disclose any offence;(ii) none of the officers who processed the case of the appellants are not prosecuted;(iii) two Officers Subhash Ahluwalia and T.G. Negi who took active part in the decision making were made Principal Secretary to CM and Advisor to CM, respectively, by respondent No. 2 and were not prosecuted;(iv) As per the prosecution, there is no criminal act on the part of the officers and they performed their appropriate administrative duties due to which sanction stands declined by the Central Government and the CVC. That itself is sufficient to absolve others from any criminal prosecution;(x) even otherwise the State Government continues to remain owner of the land which is on lease and on which the appellants have constructed assets worth above 150 crores;(xi) these assets are for use of the public of the State and are being used as such. Further, filing of chargesheet and an order taking cognizance is not a final judicial order. It is a preliminary process in criminal law and is open to challenge in higher judicial fora such as this Court.43. Insofar as conversion of Society into not for profit company under Section 25 of the Companies Act, 1956 is concerned, it was obviously done as per the mandate of BCCI. There can hardly be an element of criminality therein. This Court fails to understand as to how any criminal intent can be attributed in merging the said society into a company, that too, to prevent the State Government from controlling it, which is the motive attributed by the respondents themselves. It rather shows the intent of the State Government which wanted to grab the control of the Cricket Association. Such a tendency on the part of the State authorities is condemned by a Committee headed by former Chief Justice R.M. Lodha and approved by this Court. If at all, this is a reflection upon the State Government. It also lends credence to the submission of the appellants that when the State Government fail to achieve the aforesaid purpose, it went after the appellants. If at all, the subject matter was a civil dispute between the appellants and the respondents.44. We may also mention that record reveals that respondent No.2 personally supervised the investigation. However, we are eschewing the discussion as to whether chargesheet is result of mala fide or political vendetta, since we feel that, ex facie, no case of cheating/fraud or criminal breach of trust is made out. However, at the same time, it would be necessary to point out that in the proceedings filed by the appellants under Section 482 Cr.P.C., respondent No.2 was impleaded as the allegations of mala fides were attributed to him. Since, we are not looking into these allegations, respondent No.2 does not have much role to play in these proceedings. That apart, respondent No.2 has filed counter affidavit stating that he is not a necessary party and it is not his job to defend the prosecution. Having regard to the stand taken by the respondent No.1 not to prosecute these cases, even otherwise, no purpose would be served in continuing with these proceedings.45. In view of our aforesaid discussion, argument of respondent No.2 that the appeals have become infructuous cannot be accepted.46. We are conscious of the scope of powers of the High Court under Section 482 of Cr.P.C. The inherent jurisdiction is to be exercised carefully and with caution and only when exercise is justified by the tests specifically laid down in the Section itself. Further, inherent power under this provision is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily. If the trial is allowed to linger when prima facie it appears to the Court that the trial could likely to be ended in acquittal. It is, for this reason, principle which is laid down by catena of judgments is that the power is to be exercised by the High Court either to prevent abuse of process of any court or otherwise to secure the ends of justice. However, whenever it is found that the case is coming within the four corners of the aforesaid parameters, the powers possessed by the High Court under this provision are very wide. It means that the Court has to undertake the exercise with great caution. However, the High Court is not to be inhibited when the circumstances warrant exercise of such a power to do substantial justice to the parties. This provision has been eloquently discussed in Bhajan Lals case which has become locus classicus. Principle Nos. (i) and (ii) of Indian Oil Corporation are, therefore, become applicable. The entire subject matter has been revisited in a recent judgment in Vineet Kumar and some of the discussion therein which takes note of earlier judgments is reproduced below:26. A three-Judge Bench in State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] had the occasion to consider the ambit of Section 482 CrPC. By analysing the scope of Section 482 CrPC, this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. The following was laid down in para 6: (SCC p. 94)6. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.27. Further in para 8 the following was stated: (Devendrappa case [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] , SCC p. 95)8. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp1 SCC 335 : 1992 SCC (Cri) 426 ].In the instant case, the High Court simply noted those judgments which put a note of caution in exercising the powers under Section 482 Cr.P.C. to quash such proceedings and dismissed the petition with a shallow examination of the case, thereby glossing over the material facts (which are noted hereinabove) and failing to examine that these pertinent aspects were sufficient to demonstrate that no criminal case was made out, particularly when all the concerned officers, who had taken the decision, were let off on the ground that they had not committed any wrong.47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated. | 1 | 12,780 | 3,798 | ### 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:
be harassed unnecessarily. If the trial is allowed to linger when prima facie it appears to the Court that the trial could likely to be ended in acquittal. It is, for this reason, principle which is laid down by catena of judgments is that the power is to be exercised by the High Court either to prevent abuse of process of any court or otherwise to secure the ends of justice. However, whenever it is found that the case is coming within the four corners of the aforesaid parameters, the powers possessed by the High Court under this provision are very wide. It means that the Court has to undertake the exercise with great caution. However, the High Court is not to be inhibited when the circumstances warrant exercise of such a power to do substantial justice to the parties. This provision has been eloquently discussed in Bhajan Lals case which has become locus classicus. Principle Nos. (i) and (ii) of Indian Oil Corporation are, therefore, become applicable. The entire subject matter has been revisited in a recent judgment in Vineet Kumar and some of the discussion therein which takes note of earlier judgments is reproduced below: 26. A three-Judge Bench in State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] had the occasion to consider the ambit of Section 482 CrPC. By analysing the scope of Section 482 CrPC, this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. The following was laid down in para 6: (SCC p. 94) 6. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. 27. Further in para 8 the following was stated: (Devendrappa case [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] , SCC p. 95) 8. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp1 SCC 335 : 1992 SCC (Cri) 426 ]. In the instant case, the High Court simply noted those judgments which put a note of caution in exercising the powers under Section 482 Cr.P.C. to quash such proceedings and dismissed the petition with a shallow examination of the case, thereby glossing over the material facts (which are noted hereinabove) and failing to examine that these pertinent aspects were sufficient to demonstrate that no criminal case was made out, particularly when all the concerned officers, who had taken the decision, were let off on the ground that they had not committed any wrong. 47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated.
### Response:
1
### Explanation:
to proceed where the accused would be harassed unnecessarily. If the trial is allowed to linger when prima facie it appears to the Court that the trial could likely to be ended in acquittal. It is, for this reason, principle which is laid down by catena of judgments is that the power is to be exercised by the High Court either to prevent abuse of process of any court or otherwise to secure the ends of justice. However, whenever it is found that the case is coming within the four corners of the aforesaid parameters, the powers possessed by the High Court under this provision are very wide. It means that the Court has to undertake the exercise with great caution. However, the High Court is not to be inhibited when the circumstances warrant exercise of such a power to do substantial justice to the parties. This provision has been eloquently discussed in Bhajan Lals case which has become locus classicus. Principle Nos. (i) and (ii) of Indian Oil Corporation are, therefore, become applicable. The entire subject matter has been revisited in a recent judgment in Vineet Kumar and some of the discussion therein which takes note of earlier judgments is reproduced below:26. A three-Judge Bench in State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] had the occasion to consider the ambit of Section 482 CrPC. By analysing the scope of Section 482 CrPC, this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. The following was laid down in para 6: (SCC p. 94)6. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.27. Further in para 8 the following was stated: (Devendrappa case [State of Karnataka v. M. Devendrappa, 2002 3 SCC 89 : 2002 SCC (Cri) 539 ] , SCC p. 95)8. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp1 SCC 335 : 1992 SCC (Cri) 426 ].In the instant case, the High Court simply noted those judgments which put a note of caution in exercising the powers under Section 482 Cr.P.C. to quash such proceedings and dismissed the petition with a shallow examination of the case, thereby glossing over the material facts (which are noted hereinabove) and failing to examine that these pertinent aspects were sufficient to demonstrate that no criminal case was made out, particularly when all the concerned officers, who had taken the decision, were let off on the ground that they had not committed any wrong.47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated.
|
GYPSY PEGASUS LTD Vs. STATE OF GUJARAT | 1. Leave granted. 2. The appellant - Assessee is an Event Organizer who had arranged a live musical concert in the Sardar Patel Stadium, Navrangpura, Ahmedabad on 23rd December, 2016. Entertainment tax under Section 3 of the Gujarat Entertainments Tax Act, 1977 (for short the Act) on the gate receipts of the musical program has been levied which was questioned by the appellant before the High Court. The High Court having answered the question in the negative i.e. against the appellant - Assessee the present appeal has been filed. 3. We have heard the learned counsels for the parties. 4. Section 3 of the Act is the charging Section. Section 3A of the Act which was brought in by an amendment in the year 1998 reads as follows: 3A. Certain entertainments free from tax. Notwithstanding anything contained in section 3, there shall not be levied and paid the tax to be State Government on any payment for admission to entertainments specified in the Schedule III. 5. Schedule III to the Act specifies the lists of entertainments that Section 3A of the Act takes out of the purview of the charging Section. The particular form of entertainment that we are concerned with is first item in Schedule III to the Act, namely, All kinds of musical programmes including musical nights and opera. 6. Section 29 of the Act provides for exemption from payment of entertainment tax by issuance of notification in the Official Gazette and upon fulfillment of the conditions specified therein. One such condition for grant of exemption is that the entertainment must be provided for educational, medical, cultural, charitable, or such other purpose. 7. A perusal of the order of the High Court would go to show that the primary ground for rejection of the appellants claim is that the musical concert organized by the appellant was not for the purposes of promotion of cultural activities and was for commercial purposes. 8. The claim of the appellant - Assessee has been sought to be resisted by Shri Pritesh Kapur, learned counsel appearing for the respondent - State by contending that a reading of the budget speech of the Honble Finance Minister which had led to the amendment of the Act introducing Section 3A would go to show that the purport of Section 3A was to fast track the exemptions available under Section 29 of the Act. He has additionally submitted that a musical concert would not be a musical event as it is not a musical work. In this regard, he has relied on the definition of the term musical work contained in Section 2(p) of the Copyright Act, 1957. Attempts have also been made to persuade the Court that the common understanding of the word music would exclude a live musical concert. 9. The matter lies within a short compass. Section 3 of the Act is the charging section whereas Section 3A of the Act makes certain forms of entertainments non-taxable. If a form of entertainment is not taxable under Section 3A of the Act we do not see how the requirement of exemption and necessity to conform to the requirement of exemption can apply to a non-taxable form of entertainment. 10. We have read and considered the speech of the Honble Finance Minister which had led to the amendment of the Act by incorporation of Section 3A and what we find therefrom is that all kinds of musical programmes, without any qualification, have been sought to be taken out of the purview of the charging section. If that is so, we can find no substance in the arguments advanced on behalf of the State; neither can we agree with the reasoning of the High Court. The High Court could not have imposed the requirement of the entertainment to be for educational, cultural or charitable purpose when the form of entertainment in question is included in Schedule III to the Act. | 1[ds]7. A perusal of the order of the High Court would go to show that the primary ground for rejection of the appellants claim is that the musical concert organized by the appellant was not for the purposes of promotion of cultural activities and was for commercial purposes.9. The matter lies within a short compass. Section 3 of the Act is the charging section whereas Section 3A of the Act makes certain forms of entertainments non-taxable. If a form of entertainment is not taxable under Section 3A of the Act we do not see how the requirement of exemption and necessity to conform to the requirement of exemption can apply to a non-taxable form of entertainment.10. We have read and considered the speech of the Honble Finance Minister which had led to the amendment of the Act by incorporation of Section 3A and what we find therefrom is that all kinds of musical programmes, without any qualification, have been sought to be taken out of the purview of the charging section. If that is so, we can find no substance in the arguments advanced on behalf of the State; neither can we agree with the reasoning of the High Court. The High Court could not have imposed the requirement of the entertainment to be for educational, cultural or charitable purpose when the form of entertainment in question is included in Schedule III to the Act. | 1 | 713 | 252 | ### 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:
1. Leave granted. 2. The appellant - Assessee is an Event Organizer who had arranged a live musical concert in the Sardar Patel Stadium, Navrangpura, Ahmedabad on 23rd December, 2016. Entertainment tax under Section 3 of the Gujarat Entertainments Tax Act, 1977 (for short the Act) on the gate receipts of the musical program has been levied which was questioned by the appellant before the High Court. The High Court having answered the question in the negative i.e. against the appellant - Assessee the present appeal has been filed. 3. We have heard the learned counsels for the parties. 4. Section 3 of the Act is the charging Section. Section 3A of the Act which was brought in by an amendment in the year 1998 reads as follows: 3A. Certain entertainments free from tax. Notwithstanding anything contained in section 3, there shall not be levied and paid the tax to be State Government on any payment for admission to entertainments specified in the Schedule III. 5. Schedule III to the Act specifies the lists of entertainments that Section 3A of the Act takes out of the purview of the charging Section. The particular form of entertainment that we are concerned with is first item in Schedule III to the Act, namely, All kinds of musical programmes including musical nights and opera. 6. Section 29 of the Act provides for exemption from payment of entertainment tax by issuance of notification in the Official Gazette and upon fulfillment of the conditions specified therein. One such condition for grant of exemption is that the entertainment must be provided for educational, medical, cultural, charitable, or such other purpose. 7. A perusal of the order of the High Court would go to show that the primary ground for rejection of the appellants claim is that the musical concert organized by the appellant was not for the purposes of promotion of cultural activities and was for commercial purposes. 8. The claim of the appellant - Assessee has been sought to be resisted by Shri Pritesh Kapur, learned counsel appearing for the respondent - State by contending that a reading of the budget speech of the Honble Finance Minister which had led to the amendment of the Act introducing Section 3A would go to show that the purport of Section 3A was to fast track the exemptions available under Section 29 of the Act. He has additionally submitted that a musical concert would not be a musical event as it is not a musical work. In this regard, he has relied on the definition of the term musical work contained in Section 2(p) of the Copyright Act, 1957. Attempts have also been made to persuade the Court that the common understanding of the word music would exclude a live musical concert. 9. The matter lies within a short compass. Section 3 of the Act is the charging section whereas Section 3A of the Act makes certain forms of entertainments non-taxable. If a form of entertainment is not taxable under Section 3A of the Act we do not see how the requirement of exemption and necessity to conform to the requirement of exemption can apply to a non-taxable form of entertainment. 10. We have read and considered the speech of the Honble Finance Minister which had led to the amendment of the Act by incorporation of Section 3A and what we find therefrom is that all kinds of musical programmes, without any qualification, have been sought to be taken out of the purview of the charging section. If that is so, we can find no substance in the arguments advanced on behalf of the State; neither can we agree with the reasoning of the High Court. The High Court could not have imposed the requirement of the entertainment to be for educational, cultural or charitable purpose when the form of entertainment in question is included in Schedule III to the Act.
### Response:
1
### Explanation:
7. A perusal of the order of the High Court would go to show that the primary ground for rejection of the appellants claim is that the musical concert organized by the appellant was not for the purposes of promotion of cultural activities and was for commercial purposes.9. The matter lies within a short compass. Section 3 of the Act is the charging section whereas Section 3A of the Act makes certain forms of entertainments non-taxable. If a form of entertainment is not taxable under Section 3A of the Act we do not see how the requirement of exemption and necessity to conform to the requirement of exemption can apply to a non-taxable form of entertainment.10. We have read and considered the speech of the Honble Finance Minister which had led to the amendment of the Act by incorporation of Section 3A and what we find therefrom is that all kinds of musical programmes, without any qualification, have been sought to be taken out of the purview of the charging section. If that is so, we can find no substance in the arguments advanced on behalf of the State; neither can we agree with the reasoning of the High Court. The High Court could not have imposed the requirement of the entertainment to be for educational, cultural or charitable purpose when the form of entertainment in question is included in Schedule III to the Act.
|
State Of Maharashtra Vs. Kanchanmala Vijaysing Shirke | out insurance policy providing insurance against any liability to third parties incurred by the person using the vehicle. In this background, according to us, the courts while judging the liability of the Central or State Government or local authorities or transport undertakings, which have been exempted from the provision of sub-section (1) of Section 94, have to be more cautious, while recording a finding as to whether in the facts and circumstances of a particular case the Central or the State Government or the local authority or the transport undertaking in question can be held vicariously liable for any act of its employee in the course of employment. As a result of commercial and industrial growth, even motor accidents are on steep rise. For no fault or any contributory negligence of the victims of such accidents, the families are deprived of their breadwinners. The jurisprudence of compensation for motor accidents must develop towards liberal approach, because of mounting highway accidents 17. Incidentally, it may be pointed out that in Motor Vehicles Act, 1939, Chapter VII-A "liability without fault in certain cases" has been introduced (Chapter X of the Motor Vehicles Act, 1988). Sub-section (1) of Section 92-A provides that where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle, the owner of the vehicle shall be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said section. Sub-section (2) specifies a fixed amount for such liability without fault. In view of sub-section (3), the claimant is not required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner of the vehicle. Sub-section (4) of that section says in clear and unambiguous words that a claim for compensation under sub-section (1) of that section shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made. Section 92-B clarifies that the right to claim compensation under Section 92-A in respect of death or permanent disablement of any person shall be in addition to any other right i.e. the right to claim compensation on principle of fault. The introduction of provisions creating liability without fault gives out that Parliament has provided for payment of compensation within certain limits, ignoring the principle of fault. When even under the law of tort, courts have held that the employer is vicariously liable for an authorised act done in an unauthorised manner taking into consideration the interest of the victims of the accident, according to us, this approach is all the more necessary while judging the liability of the owner of the vehicle under the statutory provisions of the Motor Vehicles Act 18. So far the facts of the present case are concerned, the High Court has rightly come to the conclusion, on basis of the pleadings and evidence on record, that it was the year ending day i.e. 31-3-1980 and the clerks and officers were required to work during night time. This direction had been given by Appellant 2 who was in charge of the office. It further appears that after normal working hours of the office, the employees had gone to their homes and were required to come back after taking dinner. The jeep was used for bringing such employees to the office. In this background, there is no escape from the conclusion that the jeep was being used in connection with the affairs of the State and for official purpose. The High Court has also found that the respondent who was the clerk in the office of Appellant 2 was driving the vehicle under the authority of the driver who was in charge of the said vehicle and as the driver had consumed more liquor on that day he permitted the respondent to drive the vehicle that night. The facts of the present case disclose and demonstrate that an authorised act was being done in an unauthorised manner. The accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected with "in the course of employment" - it was not an independent act for a purpose or business which had no nexus or connection with the business of the State Government so as to absolve the appellant-State from the liability 19. The crucial test is whether the initial act of the employee was expressly authorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. This is necessary to ensure so that the injured third parties who are not directly involved or consumed with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. In the present case, it has been established beyond doubt that the driver of the vehicle had been fully authorised to drive the jeep for a purpose connected with the affairs of the State and the dispute is only in respect of the manner and the mode in which the said driver performed his duties by allowing another employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it is established that negligent act of the driver and respondent was "in the course of employment", the appellant-State shall be liable for the same | 0[ds]18. So far the facts of the present case are concerned, the High Court has rightly come to the conclusion, on basis of the pleadings and evidence on record, that it was the year ending day i.e. 31-3-1980 and the clerks and officers were required to work during night time. This direction had been given by Appellant 2 who was in charge of the office. It further appears that after normal working hours of the office, the employees had gone to their homes and were required to come back after taking dinner. The jeep was used for bringing such employees to the office. In this background, there is no escape from the conclusion that the jeep was being used in connection with the affairs of the State and for official purpose. The High Court has also found that the respondent who was the clerk in the office of Appellant 2 was driving the vehicle under the authority of the driver who was in charge of the said vehicle and as the driver had consumed more liquor on that day he permitted the respondent to drive the vehicle that night. The facts of the present case disclose and demonstrate that an authorised act was being done in an unauthorised manner. The accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected with "in the course of employment" - it was not an independent act for a purpose or business which had no nexus or connection with the business of the State Government so as to absolve the appellant-State from the liability19. The crucial test is whether the initial act of the employee was expressly authorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. This is necessary to ensure so that the injured third parties who are not directly involved or consumed with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. In the present case, it has been established beyond doubt that the driver of the vehicle had been fully authorised to drive the jeep for a purpose connected with the affairs of the State and the dispute is only in respect of the manner and the mode in which the said driver performed his duties by allowing another employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it is established that negligent act of the driver and respondent was "in the course of employment", the appellant-State shall be liable for the | 0 | 4,919 | 551 | ### 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:
out insurance policy providing insurance against any liability to third parties incurred by the person using the vehicle. In this background, according to us, the courts while judging the liability of the Central or State Government or local authorities or transport undertakings, which have been exempted from the provision of sub-section (1) of Section 94, have to be more cautious, while recording a finding as to whether in the facts and circumstances of a particular case the Central or the State Government or the local authority or the transport undertaking in question can be held vicariously liable for any act of its employee in the course of employment. As a result of commercial and industrial growth, even motor accidents are on steep rise. For no fault or any contributory negligence of the victims of such accidents, the families are deprived of their breadwinners. The jurisprudence of compensation for motor accidents must develop towards liberal approach, because of mounting highway accidents 17. Incidentally, it may be pointed out that in Motor Vehicles Act, 1939, Chapter VII-A "liability without fault in certain cases" has been introduced (Chapter X of the Motor Vehicles Act, 1988). Sub-section (1) of Section 92-A provides that where the death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle, the owner of the vehicle shall be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said section. Sub-section (2) specifies a fixed amount for such liability without fault. In view of sub-section (3), the claimant is not required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner of the vehicle. Sub-section (4) of that section says in clear and unambiguous words that a claim for compensation under sub-section (1) of that section shall not be defeated by reason of any wrongful act, neglect or default of the person in respect of whose death or permanent disablement the claim has been made. Section 92-B clarifies that the right to claim compensation under Section 92-A in respect of death or permanent disablement of any person shall be in addition to any other right i.e. the right to claim compensation on principle of fault. The introduction of provisions creating liability without fault gives out that Parliament has provided for payment of compensation within certain limits, ignoring the principle of fault. When even under the law of tort, courts have held that the employer is vicariously liable for an authorised act done in an unauthorised manner taking into consideration the interest of the victims of the accident, according to us, this approach is all the more necessary while judging the liability of the owner of the vehicle under the statutory provisions of the Motor Vehicles Act 18. So far the facts of the present case are concerned, the High Court has rightly come to the conclusion, on basis of the pleadings and evidence on record, that it was the year ending day i.e. 31-3-1980 and the clerks and officers were required to work during night time. This direction had been given by Appellant 2 who was in charge of the office. It further appears that after normal working hours of the office, the employees had gone to their homes and were required to come back after taking dinner. The jeep was used for bringing such employees to the office. In this background, there is no escape from the conclusion that the jeep was being used in connection with the affairs of the State and for official purpose. The High Court has also found that the respondent who was the clerk in the office of Appellant 2 was driving the vehicle under the authority of the driver who was in charge of the said vehicle and as the driver had consumed more liquor on that day he permitted the respondent to drive the vehicle that night. The facts of the present case disclose and demonstrate that an authorised act was being done in an unauthorised manner. The accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected with "in the course of employment" - it was not an independent act for a purpose or business which had no nexus or connection with the business of the State Government so as to absolve the appellant-State from the liability 19. The crucial test is whether the initial act of the employee was expressly authorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. This is necessary to ensure so that the injured third parties who are not directly involved or consumed with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. In the present case, it has been established beyond doubt that the driver of the vehicle had been fully authorised to drive the jeep for a purpose connected with the affairs of the State and the dispute is only in respect of the manner and the mode in which the said driver performed his duties by allowing another employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it is established that negligent act of the driver and respondent was "in the course of employment", the appellant-State shall be liable for the same
### Response:
0
### Explanation:
18. So far the facts of the present case are concerned, the High Court has rightly come to the conclusion, on basis of the pleadings and evidence on record, that it was the year ending day i.e. 31-3-1980 and the clerks and officers were required to work during night time. This direction had been given by Appellant 2 who was in charge of the office. It further appears that after normal working hours of the office, the employees had gone to their homes and were required to come back after taking dinner. The jeep was used for bringing such employees to the office. In this background, there is no escape from the conclusion that the jeep was being used in connection with the affairs of the State and for official purpose. The High Court has also found that the respondent who was the clerk in the office of Appellant 2 was driving the vehicle under the authority of the driver who was in charge of the said vehicle and as the driver had consumed more liquor on that day he permitted the respondent to drive the vehicle that night. The facts of the present case disclose and demonstrate that an authorised act was being done in an unauthorised manner. The accident took place when the act authorised was being performed in a mode which may not be proper but nonetheless it was directly connected with "in the course of employment" - it was not an independent act for a purpose or business which had no nexus or connection with the business of the State Government so as to absolve the appellant-State from the liability19. The crucial test is whether the initial act of the employee was expressly authorised and lawful. The employer, as in the present case the State Government, shall nevertheless be responsible for the manner in which the employee, that is, the driver and the respondent executed the authority. This is necessary to ensure so that the injured third parties who are not directly involved or consumed with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. In the present case, it has been established beyond doubt that the driver of the vehicle had been fully authorised to drive the jeep for a purpose connected with the affairs of the State and the dispute is only in respect of the manner and the mode in which the said driver performed his duties by allowing another employee of the State Government, who was also going on an official duty, to drive the jeep, when the accident took place. Once it is established that negligent act of the driver and respondent was "in the course of employment", the appellant-State shall be liable for the
|
K. R. Deb Vs. Collector Of Central Excise, Shillong | 4-1-62 and 12-1-62, it may kindly be seen that no conclusive proof is forthcoming to establish the charge of acceptance of money (Rs. 100/-) by Shri K. R. Deb. But in view of the previous enquiry and statements given by witnesses, evading reply of Sri Dutta, the conduct of Shri K. R. Deb may not be above board." 8. On February 13, 1962 the Collector passed the following order"In supersession of this office letter O. No. II (10)A/1/Con/60 and O. No. II (10)A/3/Con/61, dated 12-5-61 and 22-8-61 respectively, the undersigned considers that another Inquiry Officer should be appointed to inquire afresh into the charge framed against Sarbasri K. R. Deb. Sub-Inspector of Central Excise Shillong Collectorate. Now therefore, the undersigned in exercise of the powers conferred by Rule15 (4) of the C. C. S. (C.C. A), Rules 1957 hereby appoints Shri K. P. Patnaik Examiner of Accounts Customs and Central Excise Shillong as an enquiry officer to inquire into the charges framed against the said Sarbasri K. R. Deb." 9. On March 6, 1962, Shri Patnaik reported that it was proved that "Shri K. R. Deb did not bring into account the sum of Rs. 100 realised on May 31, 1959 from Siddique Ahmed of Ramendranager. The amount has therefore been misappropriated. The charge of misappropriation of Rs. 100 is therefore proved against Sri K.R. Deb." 10. On March 15, 1969 a notice was issued to the appellant to show cause why he should not be from service. On March 20, 1962 he filed on application giving the list of documents copies of which he wanted. He gave his explanation on May 21, 1962 and asked for personal hearing. On June 4, 1962, he was dismissed from service and on June 14, 1962, he filed the writ petition out of which this appeal arises. 11. A number of points have been raised before us but we need only mention one point, viz, that the collector had no authority to appoint Shri K. P. Patnaik to inquire into the charge after the Inquiry Officers had reported in his favour. It was urged before us that such an inquiry is not contemplated by the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was contended that Rule 15 of the Classification and Control Rules did not contemplate successive inquries, and at any rate, even if it contemplated successive inquiries there was no provision for setting aside earlier inquiries without giving any reason whatsoever. It was further contended that the order dated Feb 13, 1962 was mala fide. 12. Rule 15 (1) of the Classification and Control and Appeal Rules reads as follows:"(1) Without prejudice to the provision of the Public Servants (Inquiry) Act, 1950, no order imposing on a Government servant any of the penalties specified in Clauses (iv) to (vii) of Rule 13 shall be passed except after an inquiry, held as far as may be, in the manner hereinafter provided." Clause (2)of Rule 15 provides for framing of charges and communication in writing to the Government servant of these charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under Clause (3) the Government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under Clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry; recording its findings on each of the charges together with reasons therefor. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. Under Clause (9) "the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Clause (10) provides for issue of show-cause notice. 13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry became some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9. 14. In our view the rules do not contemplate an action such as-was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant. 15. Before the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the Disciplinary Authority had made up it mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise that the Collector was determined to get some Inquiry Officer to report against the appellant. | 1[ds]13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry became some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 914. In our view the rules do not contemplate an action such as-was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant15. Before the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the Disciplinary Authority had made up it mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise that the Collector was determined to get some Inquiry Officer to report against the appellant. | 1 | 2,104 | 292 | ### 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:
4-1-62 and 12-1-62, it may kindly be seen that no conclusive proof is forthcoming to establish the charge of acceptance of money (Rs. 100/-) by Shri K. R. Deb. But in view of the previous enquiry and statements given by witnesses, evading reply of Sri Dutta, the conduct of Shri K. R. Deb may not be above board." 8. On February 13, 1962 the Collector passed the following order"In supersession of this office letter O. No. II (10)A/1/Con/60 and O. No. II (10)A/3/Con/61, dated 12-5-61 and 22-8-61 respectively, the undersigned considers that another Inquiry Officer should be appointed to inquire afresh into the charge framed against Sarbasri K. R. Deb. Sub-Inspector of Central Excise Shillong Collectorate. Now therefore, the undersigned in exercise of the powers conferred by Rule15 (4) of the C. C. S. (C.C. A), Rules 1957 hereby appoints Shri K. P. Patnaik Examiner of Accounts Customs and Central Excise Shillong as an enquiry officer to inquire into the charges framed against the said Sarbasri K. R. Deb." 9. On March 6, 1962, Shri Patnaik reported that it was proved that "Shri K. R. Deb did not bring into account the sum of Rs. 100 realised on May 31, 1959 from Siddique Ahmed of Ramendranager. The amount has therefore been misappropriated. The charge of misappropriation of Rs. 100 is therefore proved against Sri K.R. Deb." 10. On March 15, 1969 a notice was issued to the appellant to show cause why he should not be from service. On March 20, 1962 he filed on application giving the list of documents copies of which he wanted. He gave his explanation on May 21, 1962 and asked for personal hearing. On June 4, 1962, he was dismissed from service and on June 14, 1962, he filed the writ petition out of which this appeal arises. 11. A number of points have been raised before us but we need only mention one point, viz, that the collector had no authority to appoint Shri K. P. Patnaik to inquire into the charge after the Inquiry Officers had reported in his favour. It was urged before us that such an inquiry is not contemplated by the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was contended that Rule 15 of the Classification and Control Rules did not contemplate successive inquries, and at any rate, even if it contemplated successive inquiries there was no provision for setting aside earlier inquiries without giving any reason whatsoever. It was further contended that the order dated Feb 13, 1962 was mala fide. 12. Rule 15 (1) of the Classification and Control and Appeal Rules reads as follows:"(1) Without prejudice to the provision of the Public Servants (Inquiry) Act, 1950, no order imposing on a Government servant any of the penalties specified in Clauses (iv) to (vii) of Rule 13 shall be passed except after an inquiry, held as far as may be, in the manner hereinafter provided." Clause (2)of Rule 15 provides for framing of charges and communication in writing to the Government servant of these charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under Clause (3) the Government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under Clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry; recording its findings on each of the charges together with reasons therefor. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the Government servant has admitted the facts constituting them or has had an opportunity of defending himself against them. Under Clause (9) "the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Clause (10) provides for issue of show-cause notice. 13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry became some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9. 14. In our view the rules do not contemplate an action such as-was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant. 15. Before the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the Disciplinary Authority had made up it mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise that the Collector was determined to get some Inquiry Officer to report against the appellant.
### Response:
1
### Explanation:
13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry became some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 914. In our view the rules do not contemplate an action such as-was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant15. Before the Judicial Commissioner the point was put slightly differently and it was urged that the proceedings showed that the Disciplinary Authority had made up it mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise that the Collector was determined to get some Inquiry Officer to report against the appellant.
|
M/S. S. C. Cambatta & Co. Private Ltd., Bombay Vs. The Commissioner Of Excess Profits Tax Bombay | conclusion that no goodwill had been acquired by the business of the Theatre as such, and that whatever goodwill there was, related to the site and building itself. They then proceeded to consider what value should be set upon the goodwill on the date of the transfer of the subsidiary Company as directed by the High Court. They took into account certain factors in reaching their conclusions. They first considered the earning capacity of the business, and held that prior to 1942 the business had not made profits, and that the name of Eros Theatre and Restaurant thus by itself had no goodwill at all. They, therefore, considered that the only goodwill which had been acquired attached to the lease, which the trustees had given to the Eros Theatre and Restaurant Ltd., and computing the goodwill as the value of the lease to the subsidiary company, they felt that Rs. 2 lakhs was a liberal estimate of the value of the goodwill in the hands of Eros Theatre and Restaurant, Ltd. at the material time.6. Petitions under Ss. 66(1) and 66(2) read with S. 21 of the Excess Profits Tax Act were respectively rejected by the Tribunal and the High Court; but the appellants obtained special leave from this Court, and filed these appeals.7. In our opinion, a question of law did arise in the case whether the goodwill of the Eros Theatre and Restaurant, Ltd. was calculated in accordance with law. The Tribunal seems to have taken into account only the value of the leasehold of the site to the subsidiary Company, and rejected other considerations which go to make up the goodwill of a business. No doubt, in Cruttwell v. Lye, (1810) 17 Ves 335, Lord Eldon, L. C. observed that goodwill was "nothing more than the probability that the old customers would resort to the old place". The description given by Lord Eldon has been considered always to be exceedingly narrow. The matter has to be considered from the nature of the business, because the goodwill of a public inn and the goodwill of a huge departmental stores cannot be calculated on identical principles. The matter his been considered in two cases by the House of Lords. The first case is Trego v. Hunt. 1896 AC 7, where all the definitions previously given were considered, and Lord Macnaghten observed that goodwill is"the whole advantage, whatever it may be of the reputation and connection of the firm, which may have been built up by years of honest work or gained by lavish expenditure of money".In a subsequent case reported in Inland Revenue Commissioners v. Muller and Co.s Margarine, Ltd., 1901 AC 217 Lord Macnaghten at pp. 223 and 224 made the following observations:"What is goodwill? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the goodname, reputation, and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start ........ If there is one attribute common to all cases of goodwill it is the attribute of locality. For goodwill has no independent existence. It cannot subsist by itself. It must be attached to a business. Destroy the business, and the goodwill perishes with it, though elements remain which may perhaps be gathered up and be revived again".8. These two cases and others were considered in two Australian cases. The first is Daniell v. Federal Commissioner of Taxation, (1928) 42 CLR 296 where Knox, C. J. observed :"My opinion is that while it cannot be said to be absolutely and necessarily inseparable from the premises or to have no separate value, prima facie at any rate it may be treated as attached to the premises and whatever its value may be, should be treated as an enhancement of the value of the premises".In the second case reported in Federal Commissioner of Taxation v. Williamson, (1943) 67 CLR 561, Rich, J. observed at p. 564 as follows :Hence to determine the nature of the goodwill in any given case, it is necessary to consider the type of business and the type of customer which such a business is inherently likely to attract as well as the surrounding circumstances ...........The goodwill of a business is a composite thing referable in part to its locality, in part to the way in which it is conducted and the personality of those who conduct it, and in part to the likelihood of competition, many customers being no doubt actuated by mixed motives in conferring their custom".In Earl Jowitts Dictionary of English Law, 1959 Edn., "goodwill" is defined thus."The goodwill of a business is the benefit which arises from its having been carried on for some time in a particular house, or by a particular person or firm, or from the use of a particular trade mark or trade name".9. It will thus been seen that the goodwill of a business depends upon a variety of circumstances or a combination of them. The location, the service, the standing of the business, the honesty of those who run it, and the lack of competition and many other factors go individually or together to make up the goodwill, though locality always plays a considerable part. Shift the locality, and the goodwill may be lost. At the same time, locality is not everything. The power to attract custom depends on one or more of the other factors as well. In the case of a theatre or restaurant, what is catered, how the service is run and what the competition is, contribute also to the goodwill.10. From the above, it is manifest that the matter of goodwill needs to be considered in a much broader way than what the Tribunal has done. A question of law did arise in the case, and, in our opinion, the High Court should have directed the Tribunal to state a case upon it. | 1[ds]7. In our opinion, a question of law did arise in the case whether the goodwill of the Eros Theatre and Restaurant, Ltd. was calculated in accordance with law. The Tribunal seems to have taken into account only the value of the leasehold of the site to the subsidiary Company, and rejected other considerations which go to make up the goodwill of a business.It will thus been seen that the goodwill of a business depends upon a variety of circumstances or a combination of them. The location, the service, the standing of the business, the honesty of those who run it, and the lack of competition and many other factors go individually or together to make up the goodwill, though locality always plays a considerable part. Shift the locality, and the goodwill may be lost. At the same time, locality is not everything. The power to attract custom depends on one or more of the other factors as well. In the case of a theatre or restaurant, what is catered, how the service is run and what the competition is, contribute also to the goodwill.10. From the above, it is manifest that the matter of goodwill needs to be considered in a much broader way than what the Tribunal has done. A question of law did arise in the case, and, in our opinion, the High Court should have directed the Tribunal to state a case upon it. | 1 | 1,828 | 269 | ### 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:
conclusion that no goodwill had been acquired by the business of the Theatre as such, and that whatever goodwill there was, related to the site and building itself. They then proceeded to consider what value should be set upon the goodwill on the date of the transfer of the subsidiary Company as directed by the High Court. They took into account certain factors in reaching their conclusions. They first considered the earning capacity of the business, and held that prior to 1942 the business had not made profits, and that the name of Eros Theatre and Restaurant thus by itself had no goodwill at all. They, therefore, considered that the only goodwill which had been acquired attached to the lease, which the trustees had given to the Eros Theatre and Restaurant Ltd., and computing the goodwill as the value of the lease to the subsidiary company, they felt that Rs. 2 lakhs was a liberal estimate of the value of the goodwill in the hands of Eros Theatre and Restaurant, Ltd. at the material time.6. Petitions under Ss. 66(1) and 66(2) read with S. 21 of the Excess Profits Tax Act were respectively rejected by the Tribunal and the High Court; but the appellants obtained special leave from this Court, and filed these appeals.7. In our opinion, a question of law did arise in the case whether the goodwill of the Eros Theatre and Restaurant, Ltd. was calculated in accordance with law. The Tribunal seems to have taken into account only the value of the leasehold of the site to the subsidiary Company, and rejected other considerations which go to make up the goodwill of a business. No doubt, in Cruttwell v. Lye, (1810) 17 Ves 335, Lord Eldon, L. C. observed that goodwill was "nothing more than the probability that the old customers would resort to the old place". The description given by Lord Eldon has been considered always to be exceedingly narrow. The matter has to be considered from the nature of the business, because the goodwill of a public inn and the goodwill of a huge departmental stores cannot be calculated on identical principles. The matter his been considered in two cases by the House of Lords. The first case is Trego v. Hunt. 1896 AC 7, where all the definitions previously given were considered, and Lord Macnaghten observed that goodwill is"the whole advantage, whatever it may be of the reputation and connection of the firm, which may have been built up by years of honest work or gained by lavish expenditure of money".In a subsequent case reported in Inland Revenue Commissioners v. Muller and Co.s Margarine, Ltd., 1901 AC 217 Lord Macnaghten at pp. 223 and 224 made the following observations:"What is goodwill? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the goodname, reputation, and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start ........ If there is one attribute common to all cases of goodwill it is the attribute of locality. For goodwill has no independent existence. It cannot subsist by itself. It must be attached to a business. Destroy the business, and the goodwill perishes with it, though elements remain which may perhaps be gathered up and be revived again".8. These two cases and others were considered in two Australian cases. The first is Daniell v. Federal Commissioner of Taxation, (1928) 42 CLR 296 where Knox, C. J. observed :"My opinion is that while it cannot be said to be absolutely and necessarily inseparable from the premises or to have no separate value, prima facie at any rate it may be treated as attached to the premises and whatever its value may be, should be treated as an enhancement of the value of the premises".In the second case reported in Federal Commissioner of Taxation v. Williamson, (1943) 67 CLR 561, Rich, J. observed at p. 564 as follows :Hence to determine the nature of the goodwill in any given case, it is necessary to consider the type of business and the type of customer which such a business is inherently likely to attract as well as the surrounding circumstances ...........The goodwill of a business is a composite thing referable in part to its locality, in part to the way in which it is conducted and the personality of those who conduct it, and in part to the likelihood of competition, many customers being no doubt actuated by mixed motives in conferring their custom".In Earl Jowitts Dictionary of English Law, 1959 Edn., "goodwill" is defined thus."The goodwill of a business is the benefit which arises from its having been carried on for some time in a particular house, or by a particular person or firm, or from the use of a particular trade mark or trade name".9. It will thus been seen that the goodwill of a business depends upon a variety of circumstances or a combination of them. The location, the service, the standing of the business, the honesty of those who run it, and the lack of competition and many other factors go individually or together to make up the goodwill, though locality always plays a considerable part. Shift the locality, and the goodwill may be lost. At the same time, locality is not everything. The power to attract custom depends on one or more of the other factors as well. In the case of a theatre or restaurant, what is catered, how the service is run and what the competition is, contribute also to the goodwill.10. From the above, it is manifest that the matter of goodwill needs to be considered in a much broader way than what the Tribunal has done. A question of law did arise in the case, and, in our opinion, the High Court should have directed the Tribunal to state a case upon it.
### Response:
1
### Explanation:
7. In our opinion, a question of law did arise in the case whether the goodwill of the Eros Theatre and Restaurant, Ltd. was calculated in accordance with law. The Tribunal seems to have taken into account only the value of the leasehold of the site to the subsidiary Company, and rejected other considerations which go to make up the goodwill of a business.It will thus been seen that the goodwill of a business depends upon a variety of circumstances or a combination of them. The location, the service, the standing of the business, the honesty of those who run it, and the lack of competition and many other factors go individually or together to make up the goodwill, though locality always plays a considerable part. Shift the locality, and the goodwill may be lost. At the same time, locality is not everything. The power to attract custom depends on one or more of the other factors as well. In the case of a theatre or restaurant, what is catered, how the service is run and what the competition is, contribute also to the goodwill.10. From the above, it is manifest that the matter of goodwill needs to be considered in a much broader way than what the Tribunal has done. A question of law did arise in the case, and, in our opinion, the High Court should have directed the Tribunal to state a case upon it.
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ZILA PANCHAYAT ETAH Vs. OM PRAKASH SHAH | in question. The plaintiff mentioned the name of Harnarayan as the father of Panna Lal, which was not correct. That a school was run on the land in question after seeking permission from the appropriate authorities. A letter issued by the Chairman of the District Board, which was filed by the plaintiff, stating that the District Board took permission from the owner for running the school, was forged and fabricated. There was no reason to issue such a letter, as the school was running previously and school building was already constructed. Therefore there was no need to take such permission by the District Board for running the school and no question arises to give the building or its land back. 8. It was further contended in the written statement that the property in question has been entered in the Government Register as Nuzul Khasra number 594, which was handed over to the District Board in the year 1892 for management. A school was running over this Khasra No.594, which was subsequently renumbered as 14 in the village records and 2/212 in the municipal records. The plaintiff had intentionally not arrayed the State of Uttar Pradesh as a party to the suit and on account of such non-joinder of the State, the plaintiff is not entitled to any relief. It was also averred that the market value of the land in question was not less that 20 lakhs at that point of time (in 2003) when suit was filed, that there was no proper valuation done for the suit and hence, the suit was liable to be dismissed. 9. The Zila Panchayat has adduced documentary evidence, i.e., property record maintained by the concerned authorities to support its case. The revenue record indicate property Nuzul Khasra No.595 to be the school property. Municipality register has been produced which records disputed plot No.2/212 situated at Bada Bazar in Marhara Municipality, belonging to Zila Parishad. Apart from that, even in the copy of Khatauni issued on 23.02.1994 in respect of Tehsil & District Etah, regarding 1400 Fasli=1993-1994 of Pargana Marhara, the property is recorded in the name of school under the ownership of Management Zila Parishad. The plaintiff, Om Prakash Shah, has admitted in the deposition that the land of disputed ownership is Survey No.212. It is apparent the survey number is recorded in relevant document under the ownership of Zila Parishad, which is clear from the property register maintained by the Municipality. 10. The trial court decreed the suit in favour of the plaintiffs-respondents. The first appeal as well as the second appeal filed by the appellant herein were also dismissed affirming the judgment and decree passed by the trial court on the basis of oral evidence adduced by the plaintiffs. The evidence adduced by the respondent had been discarded. 11. We have heard learned counsel for both the parties at length, and we are of the considered view that the trial court, the first appellate court and the High Court gravely erred in law in decreeing the suit, and First Appellate Court and the High Court erred in affirming the decree, without looking to the matter in its proper perspective. 12. Even assuming the averments in plaint are correct that the building had fallen down after it was given to the school, had been constructed by Zila Panchayat on the land. The relevant paragraph from the plaint is extracted hereunder : 6. That when the building of the property as mentioned in the abovenoted para 1 was constructed, with the permission of owner of the property, District Board Etah used to run a school therein and after closure of the school, the building was returned to the property owner. It is apparent from the aforesaid pleadings of the plaintiff that the permanent construction of school building was raised on the land by the District Board, Etah. Even assuming for a moment, case set up is correct, once licensee has raised work of permanent character and incurred expenses, it becomes irrevocable under Section 60 of the Indian Easements Act, 1882. Section 60 of the Indian Easements Act, 1992 is extracted hereunder : License when revocable.-A license may be revoked by the grantor, unless- 1. It is coupled with a transfer of property and such transfer is in force; 2. The licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution. 13. Thus, in our view, even as per the pleadings of the plaintiff, the suit could not have been decreed. Apart from that, we find that the findings recorded by the trial court as to the ownership of plaintiffs are wholly perverse and impermissible. The documentary evidence could not have been discarded in the method and manner in which it has been done. There was absolutely nothing to rebut the Nazul Khasra or the records maintained by the municipality and Zila Parishad. The appellant had pleaded Survey numbers in its written statement very clearly and had adduced evidence in this regard. There was absolutely nothing to discard the documentary evidence adduced by the appellant and rely upon oral ipse dixit evidence of the plaintiff-respondent. There is statutory presumption of correctness of revenue entries which has not been rebutted in the instant case. The plaintiff-respondent was claiming his ownership on the property in question, but no documentary evidence had been adduced on his behalf indicating that they were the owners of the property in question. Absence of entry in relevant documents of ownership also negates case of plaintiffs. Thus the property in question was clearly under the ownership of the Government. Even assuming that it belonged to the ancestors of the plaintiff, once the land had been given to run a school, which had been constructed on the land by District Board, obviously licence could not have been revoked. It was admitted by the plaintiff, Om Prakash Shah, that the property in question is plot No.212. The record indicates that it is owned by respondent-plaintiff. | 1[ds]11. We have heard learned counsel for both the parties at length, and we are of the considered view that the trial court, the first appellate court and the High Court gravely erred in law in decreeing the suit, and First Appellate Court and the High Court erred in affirming the decree, without looking to the matter in its proper perspective.12. Even assuming the averments in plaint are correct that the building had fallen down after it was given to the school, had been constructed by Zila Panchayat on the land.13. Thus, in our view, even as per the pleadings of the plaintiff, the suit could not have been decreed. Apart from that, we find that the findings recorded by the trial court as to the ownership of plaintiffs are wholly perverse and impermissible. The documentary evidence could not have been discarded in the method and manner in which it has been done. There was absolutely nothing to rebut the Nazul Khasra or the records maintained by the municipality and Zila Parishad. The appellant had pleaded Survey numbers in its written statement very clearly and had adduced evidence in this regard. There was absolutely nothing to discard the documentary evidence adduced by the appellant and rely upon oral ipse dixit evidence of the plaintiff-respondent. There is statutory presumption of correctness of revenue entries which has not been rebutted in the instant case. The plaintiff-respondent was claiming his ownership on the property in question, but no documentary evidence had been adduced on his behalf indicating that they were the owners of the property in question. Absence of entry in relevant documents of ownership also negates case of plaintiffs. Thus the property in question was clearly under the ownership of the Government. Even assuming that it belonged to the ancestors of the plaintiff, once the land had been given to run a school, which had been constructed on the land by District Board, obviously licence could not have been revoked. It was admitted by the plaintiff, Om Prakash Shah, that the property in question is plot No.212. The record indicates that it is owned by respondent-plaintiff. | 1 | 1,660 | 389 | ### 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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in question. The plaintiff mentioned the name of Harnarayan as the father of Panna Lal, which was not correct. That a school was run on the land in question after seeking permission from the appropriate authorities. A letter issued by the Chairman of the District Board, which was filed by the plaintiff, stating that the District Board took permission from the owner for running the school, was forged and fabricated. There was no reason to issue such a letter, as the school was running previously and school building was already constructed. Therefore there was no need to take such permission by the District Board for running the school and no question arises to give the building or its land back. 8. It was further contended in the written statement that the property in question has been entered in the Government Register as Nuzul Khasra number 594, which was handed over to the District Board in the year 1892 for management. A school was running over this Khasra No.594, which was subsequently renumbered as 14 in the village records and 2/212 in the municipal records. The plaintiff had intentionally not arrayed the State of Uttar Pradesh as a party to the suit and on account of such non-joinder of the State, the plaintiff is not entitled to any relief. It was also averred that the market value of the land in question was not less that 20 lakhs at that point of time (in 2003) when suit was filed, that there was no proper valuation done for the suit and hence, the suit was liable to be dismissed. 9. The Zila Panchayat has adduced documentary evidence, i.e., property record maintained by the concerned authorities to support its case. The revenue record indicate property Nuzul Khasra No.595 to be the school property. Municipality register has been produced which records disputed plot No.2/212 situated at Bada Bazar in Marhara Municipality, belonging to Zila Parishad. Apart from that, even in the copy of Khatauni issued on 23.02.1994 in respect of Tehsil & District Etah, regarding 1400 Fasli=1993-1994 of Pargana Marhara, the property is recorded in the name of school under the ownership of Management Zila Parishad. The plaintiff, Om Prakash Shah, has admitted in the deposition that the land of disputed ownership is Survey No.212. It is apparent the survey number is recorded in relevant document under the ownership of Zila Parishad, which is clear from the property register maintained by the Municipality. 10. The trial court decreed the suit in favour of the plaintiffs-respondents. The first appeal as well as the second appeal filed by the appellant herein were also dismissed affirming the judgment and decree passed by the trial court on the basis of oral evidence adduced by the plaintiffs. The evidence adduced by the respondent had been discarded. 11. We have heard learned counsel for both the parties at length, and we are of the considered view that the trial court, the first appellate court and the High Court gravely erred in law in decreeing the suit, and First Appellate Court and the High Court erred in affirming the decree, without looking to the matter in its proper perspective. 12. Even assuming the averments in plaint are correct that the building had fallen down after it was given to the school, had been constructed by Zila Panchayat on the land. The relevant paragraph from the plaint is extracted hereunder : 6. That when the building of the property as mentioned in the abovenoted para 1 was constructed, with the permission of owner of the property, District Board Etah used to run a school therein and after closure of the school, the building was returned to the property owner. It is apparent from the aforesaid pleadings of the plaintiff that the permanent construction of school building was raised on the land by the District Board, Etah. Even assuming for a moment, case set up is correct, once licensee has raised work of permanent character and incurred expenses, it becomes irrevocable under Section 60 of the Indian Easements Act, 1882. Section 60 of the Indian Easements Act, 1992 is extracted hereunder : License when revocable.-A license may be revoked by the grantor, unless- 1. It is coupled with a transfer of property and such transfer is in force; 2. The licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution. 13. Thus, in our view, even as per the pleadings of the plaintiff, the suit could not have been decreed. Apart from that, we find that the findings recorded by the trial court as to the ownership of plaintiffs are wholly perverse and impermissible. The documentary evidence could not have been discarded in the method and manner in which it has been done. There was absolutely nothing to rebut the Nazul Khasra or the records maintained by the municipality and Zila Parishad. The appellant had pleaded Survey numbers in its written statement very clearly and had adduced evidence in this regard. There was absolutely nothing to discard the documentary evidence adduced by the appellant and rely upon oral ipse dixit evidence of the plaintiff-respondent. There is statutory presumption of correctness of revenue entries which has not been rebutted in the instant case. The plaintiff-respondent was claiming his ownership on the property in question, but no documentary evidence had been adduced on his behalf indicating that they were the owners of the property in question. Absence of entry in relevant documents of ownership also negates case of plaintiffs. Thus the property in question was clearly under the ownership of the Government. Even assuming that it belonged to the ancestors of the plaintiff, once the land had been given to run a school, which had been constructed on the land by District Board, obviously licence could not have been revoked. It was admitted by the plaintiff, Om Prakash Shah, that the property in question is plot No.212. The record indicates that it is owned by respondent-plaintiff.
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11. We have heard learned counsel for both the parties at length, and we are of the considered view that the trial court, the first appellate court and the High Court gravely erred in law in decreeing the suit, and First Appellate Court and the High Court erred in affirming the decree, without looking to the matter in its proper perspective.12. Even assuming the averments in plaint are correct that the building had fallen down after it was given to the school, had been constructed by Zila Panchayat on the land.13. Thus, in our view, even as per the pleadings of the plaintiff, the suit could not have been decreed. Apart from that, we find that the findings recorded by the trial court as to the ownership of plaintiffs are wholly perverse and impermissible. The documentary evidence could not have been discarded in the method and manner in which it has been done. There was absolutely nothing to rebut the Nazul Khasra or the records maintained by the municipality and Zila Parishad. The appellant had pleaded Survey numbers in its written statement very clearly and had adduced evidence in this regard. There was absolutely nothing to discard the documentary evidence adduced by the appellant and rely upon oral ipse dixit evidence of the plaintiff-respondent. There is statutory presumption of correctness of revenue entries which has not been rebutted in the instant case. The plaintiff-respondent was claiming his ownership on the property in question, but no documentary evidence had been adduced on his behalf indicating that they were the owners of the property in question. Absence of entry in relevant documents of ownership also negates case of plaintiffs. Thus the property in question was clearly under the ownership of the Government. Even assuming that it belonged to the ancestors of the plaintiff, once the land had been given to run a school, which had been constructed on the land by District Board, obviously licence could not have been revoked. It was admitted by the plaintiff, Om Prakash Shah, that the property in question is plot No.212. The record indicates that it is owned by respondent-plaintiff.
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Jayaswal Neco Industries Limited, Through Its Authorized Representative & Another Vs. Reserve Bank of India, Through Its Chief General Manager ?? In Charge, Department of Banking Regulations & Others | any doctrinaire or straitjacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud (354 US 457 : 1 L Ed 2d 1485 (1957) where Frankfurter, J. said in his inimitable style:In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative Judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error the bewildering conflict of the experts, and the number of times the judges have been overruled by events selflimitation can be seen to be the path to judicial wisdom and institutional prestige and stability.20. The principles laid down in the matter of Peerless General Finance and Investment Co. Limited & Anr.(Supra) have been reiterated by the Supreme Court in Balco Employees Union (Regd.) Vs. Union of India & Ors . (2002) 2 SCC 333 ).21. There cannot be disagreement as regards the object of JLF in making efforts to execute MRA, is to ensure a resolution and restructuring of the corporate debt. The process of resolution is also provided under ChapterII of the Insolvency and Bankruptcy Code, 2016. The corporate debtor or a financial creditor or an operational creditor can initiate corporate resolution process in view of Sections 6 and 7 of the IBC. An operational creditor may also approach for insolvency resolution under Section 8 of the IBC. There is a time limit prescribed for insolvency resolution process, so also a declaration of moratorium and public announcement is provided under Sections 13 and 14 of the IBC. During the pendency of the insolvency resolution proceedings, in order to manage the affairs of the corporate debtor interim resolution professionals can be appointed, who are expected to manage the assets, finances and operation of the corporate debtor, in a professional manner. Section 20 of the IBC provides that the interim resolution professional shall make an endeavour to protect and preserve the value of the property of the corporate debtor and manage the operations of the corporate debtor as a going concern. The interim resolution professionals are also empowered to constitute a committee of creditors after collation of all claims received against the corporate debtor and on determination of the financial position of the corporate debtor in view of Section 21 of the IBC. The committee of creditors is empowered to appoint the resolution professionals under Section 22 of the IBC. The resolution professionals are required to conduct corporate insolvency resolution process, in view of Section 23 of the IBC. The duties of the resolution professionals are provided for under Section 25 of the IBC. The submissions of the resolution plan and the approval thereof is provided under Sections 30 and 31 of the Code.22. In view of the provisions of the IBC, the very object of formation of the JLF and the execution of MRA by almost all the majority members and stakeholders of the JLF, can be taken care of, even under the proceedings initiated before the adjudicating authority. The instant petition is presented by the Corporate, objecting to the directions issued by the RBI to the SBI, which is a lead member of the JLF. The JLF is the forum of the creditors of Petitioner Company. It is the JLF, which had conducted meetings for arriving at a credit restructuring plan and for preparation of MRA. The CRAs in respect of which, an objection is raised by the Petitioner company were appointed by the JLF and as per the directions of the RBI, the another credit rating company i.e. IRRPL was appointed. It is the JLF, which has arrived at the MRA, which has not yet been operationalized. The directives issued by the RBI are binding on all the members of the JLF. The Petitioner in the instant Petition, is virtually seeking a direction against the JLF not to proceed with the matter before the adjudicating authority under the IBC and to virtually disregard the directives. In fact, those directives issued to the JLF and initiation of proceedings under IBC before the adjudicating authority is a subject matter of grievance by the Petitioner company. It is the Petitioner company, as recorded above, which has not brought in the upfront contribution, mandated under the directives of the RBI and as instructed by JLF. One of the CRAs appointed by the RBI does not find the residual debt of the Petitioner to be investment grade and thirdly, all the lenders have not signed the MRA. Considering these factors, it is difficult to accept the contention of the Petitioner that the MRA has been operationalized. In view of the policy declared by the RBI on 12 February 2018, since the scheme itself has been withdrawn, any direction for implementation and enforcement of the said scheme, cannot be issued. This court cannot be unmindful of the fact that the RBI has withdrawn all the schemes relating to the financial restructuring, by declaring new financial policy on 12 February 2018. The new policy appears to have been declared by RBI for the reason that the NPA, in the Nationalized banks, have touched almost 8 lakhs crores. In the instant matter also, the financial exposure of the Petitioner company is more than Rs.4000 crores, as has been recorded above, the financial policies and the financial matters, falling within the exclusive jurisdiction of the RBI, need not be scrutinized by the Court, since the Court do not possess required expertize in the financial and economic field. | 0[ds]10. In the meeting of the JLF dated 12 December 2017, the issues relating to the RBI dispensation were discussed. The note of RBI notification dated 29 September 2017, was taken whereunder it was advised that assignment of CRAs for the resolution plans and the payments to CRAs for the same, will be made by the RBI. It was decided that the SBI had already approached the RBI for approval of action of appointment of CARE and SMERA vide letters dated 17 October 2017 and 6 December 2017 and the matter is being followed up and the decision of RBI is awaited. The issue of special dispensation of staggered promoters contribution of Rs.15.00 crores upfront and remaining Rs. 85.29 crores from sale of Neco Ceramics land before March 2019, as per restructuring plan was discussed. The lenders forum agreed for minimum upfront requirement of promoters contribution of Rs.100.29 crores in the form of part cash of Rs.58.00 crores and the remaining part from conversion of existing unsecured loan into equity. It is recorded in the minutes of the meeting that the RBI in its communication to SBI on 30 November 2017, has informed that in terms of their earlier letter dated 28 August 2017, the resolution plan in respect of identified entities need to be finalized and implemented by 13 December 2017. In this context, the plan shall be considered, finalized and implemented if the following milestones are met before the deadline of 13 December 2017( i) the required credit opinions (ICE) for the resolution plans are available from two CRAs. (ii) the Master Restructuring Agreement (MRA) has been signed by all the parties and; (iii) all the preconditions specified in the respective RBI guidelines, relating to the specific resolution scheme being adopted have been complied before the deadline. In case of generic restructuring, these will include the requirements relating to the promoters contribution to be brought upfront and personal guarantees to be provided by the promoters.11. The status of MRA was also discussed. The forum confirmed that 10 out of 12 lenders of the company barring Oriental Bank of Commerce and IDBI Bank Limited with around 92% of the value had sanctioned restructuring scheme. After seeking information from Lender Legal Council (LLC), that the MRA could be signed in the absence of sanction from 2 member banks. The MRA was executed by ten lenders, except IDBI Bank Ltd. and Oriental Bank of Commerce and the company representative and was handed over to the SBI.The RBI on 5 May 2017, issued circular instructing the lenders to scrupulously adhere to the timeline prescribed in the circular to facilitate the timely decision making. It is prescribed in the circular that henceforth the decision agreed upon by minimum 60% of creditors by value and 50% of the creditors by number in JLF, would be considered as the basis for deciding the CAP and will be binding on all lenders, subject to exit (by substitution) option available in the framework.15. The RBI, on 22 May 2017, issued a press release setting out the action plan to implement the Banking Regulation (Amendment) Ordinance, 2017. The changes that were brought about to the existing regulations dealing with the stressed assets were(i) with a view to facilitating decision making in JLF, consent required for approval of proposal was changed to 60% by value instead of 75%, while keeping the number at 50%; (ii) the banks who were in minority on the proposal approved by JLF are required to either exit by complying with the substitution rules within the stipulated time or adhere to the decision of the JLF; (iii) participating banks have been mandated to implement the decision of JLF without any additional conditionality; (iv) the Boards of the bank were advised to empower their executives to implement JLF decisions without further reference to them. In respect of CRAs, with a view to preventor any conflict of interest, the RBI stated that it is exploring the feasibility of rating assignments being determined by the RBI itself and paid for from a fund to be created out of the contribution from the banks and the Reserve Bank.16. In a corrigendum issued to the earlier press release dated 12 May 2017, the RBI declared on 13 June 2017 that the IAC recommended that the banks should finalize a resolution plan within six months and in cases where a viable resolution plan is not agreed upon within six months, the banks should be required to file insolvency proceedings under the IBC. It is contended that since the resolution plan has not been finalized and implemented, the RBI directed the SBI to file insolvency proceeding under the IBC and those have already been presented. The timeline as per the directives of RBI was thus, 13 December 2017. In a circular dated 29 September 2017, the RBI issued directions under Section 35AA to the SBI in furtherance of its letter dated 28 August 2017 stating that, any resolution plan finalized outside Insolvency and Bankruptcy Code 2016, in respect of the accounts mentioned in the letter dated 28 August 2017, will be subject to a rating requirement i.e. in all resolution plans where the lenders continue to hold a portion of the debt, the residual debt must be rated as investment grade by two external CRAs, accredited by the RBI for bank loan ratings. It is further informed that the assignment of CRAs for the resolution plans and the payments to the CRAs, will be made by the RBI. The RBI, as such, assigned third CRA, which has reported the credit rating of theto be adverse. The Petitioner contends that the decision by the RBI to assign the job of credit rating to the agency appointed by the RBI, was after the SBI entered into an agreement with SMERA and as such, the decision of RBI cannot be operated retrospectively. It is also contended that it is intriguing as to how the RBI accepts the credit rating by CARE whereas, doubt the rating by SMERA, though the said agency is accredited by the RBI. The request of SBI for ratification of appointment of CARE and SMERA made on 16 October 2017, has not been accepted by the RBI. The request made by the SBI for grant of dispensation in respect of promoters contribution of Rs.15.00 crore as upfront and balance Rs.85.29 crores latest by 31 March 2019, has also not been accepted by the RBI. The RBI on 14 November 2017, communicated the SBI that on careful examination of the request made, the RBI regretted and express inability to accede to the request in respect of granting dispensation. On 30 November 2017, the Petitioner expressed willingness to contribute in the form of share application money. However, the infusion of the contribution was also not before the deadline prescribed by the RBI, since the infusion of amount of share money was subject to the approval by the Board. On 6 December, 2017, the SBI wrote to the RBI informing that the bank has already assigned the residual rating to the CARE and SMERA in accordance with the decision of the Core Committee of Lenders. The CRAs have accorded investment grade rating of BBBto the residual debt of the company. It was requested to permit to have rating from CARE and SMERA. It is further recorded that the promoters of the company have now agreed to bring in promoters contribution upfront in the form of cash, conversion of unsecured loan brought by the promoters or transferring equity of the company by promoters to the lenders to compensate for their sacrifice as per extent RBI guidelines. The restructuring process involves conversion of debt into equity which requires approval from the Companys Board approval from shareholders, which requires 21 days prior notice and in principal approval from BSE/NSE. The approval process involves time period of 45 days to 60 days. It was therefore, requested to grant extension of time limit till 31 January 2018 for implementation of restructuring package out side IBC. It is thus, clear that the promoters did not bring in their contribution within prescribed time limit nor the restructuring package outside the IBC was implemented. The RBI on 7 December 2017, informed the SBI that all the required conditions must be fully met by 13 December 2017, failing which the bank should initiate insolvency proceedings against the identified company by 31 December 2017. The RBI issued a circular providing for a completely revised framework of resolution of stressed assets and disbanding the JLF as an institution.The policy framed earlier by the RBI, in respect of the resolution of stressed assets, has been completely revised. It is the contention of the Petitioner that since the MRA has been implemented, the revised policy guidelines dated 12 February 2018, would not apply. The contentions raised by the Petitioners are devoid of substance. All the three conditionalities prescribed by the RBI have not been fulfilled by the Petitioners, those are(i) the required credit opinions (ICE) for the resolution plans available from two CRAs. It must be noted that the CRAs appointed by the RBI, in terms of its policy has not certified residual debt of the company to be investment grade. The RBI has not accepted the credit rating by SMERA. The decision of the RBI, which is a Banking Regulatory Authority having expertise, cannot be a matter of review under the writ jurisdiction, firstly because the decision making process involves a specialized expertise and secondly, the satisfaction arrived at by the regulatory bank, need not be substituted by the opinion of the Court (ii) the MRA has admittedly been not signed by all the parties. It is the contention of the Petitioner that since the creditors more than 92% in value and more than 50% in numbers have signed the MRA, the same shall be accepted. The directives issued by the RBI prescribe that MRA shall be signed by all the parties. In the instant matter, two lending banks have admittedly not signed the MRA. In the event, any bank refuses to sign, must exit in accordance with the policy. In the instant matter, twolending banks have not exited in accordance with the procedure. The contention of petitioners that thebanks have voted in favour of the CAP in the meeting of JLF, in itself does not amount to compliance of the directives of the RBI. (iii) the third and most important requirements relating to bringing promoters contribution upfront and personal guarantees to be provided by the promoters, has not been complied with by the Petitioners. It is a matter of record that the Petitioner upfront contribution was only to the extent of Rs.15 Crores out of Rs.100 crores. The Petitioner did not bring in, the promoters contribution before the deadline prescribed by the RBI i.e. before 13 December 2017. The minutes of the meeting of the JLF held on 12 December 2017, clearly record that the promoters contribution was not complete, even as late as, 12 December 2017, the conversion of Rs.42.38 crores of unsecured debt of the promoters to the equity, was only agreed as on such date and was not implemented. Thus, the Petitioner has failed to fulfill the precondition of bringing in promoters contribution to finalize the resolution plan by 13 December 17. It is vehemently contended by the Petitioner that the restructuring package has not been implemented. It shall be noted that by virtue of Clause 24.2(i) of Circular dated 25 February 2016, all the restructuring packages will be required to be implemented in a time bound manner and within 90 days from the date of the approval. In Para 3 of the letter dated 28 August 2017 of the RBI informs that, in the event a viable resolution plan is not finalized and implemented before 13 December 2017, insolvency proceedings under the provisions of IBC may be initiated before 31 December 2017 unless already initiated. In the instant matter, on 12 December 2017, the MRA was signed by 10 out of 12 lenders for implementing the debt restructuring scheme. The remaining two lenders did not exercise their right to exit in accordance with circular dated 25 February 2016. The restructuring package has not come into operation much less, it has not been implemented.18. As has been recorded above, the three required essentials(i) the required credit opinions for the resolution plans are available from two CRAs; (ii) the master restructuring agreement signed by all the parties and; (iii) the requirements relating to the promoters contribution to be brought upfront and personal guarantees to be provided by the promoters, have not at all been fulfilled and in view of above, the requirement in respect of the implementation of the resolution plans has not been fulfilled. The insolvency proceedings have already been initiated by the SBI in terms of the directives issued by theis well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the Courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters, even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts.There cannot be disagreement as regards the object of JLF in making efforts to execute MRA, is to ensure a resolution and restructuring of the corporate debt. The process of resolution is also provided under ChapterII of the Insolvency and Bankruptcy Code, 2016. The corporate debtor or a financial creditor or an operational creditor can initiate corporate resolution process in view of Sections 6 and 7 of the IBC. An operational creditor may also approach for insolvency resolution under Section 8 of the IBC. There is a time limit prescribed for insolvency resolution process, so also a declaration of moratorium and public announcement is provided under Sections 13 and 14 of the IBC. During the pendency of the insolvency resolution proceedings, in order to manage the affairs of the corporate debtor interim resolution professionals can be appointed, who are expected to manage the assets, finances and operation of the corporate debtor, in a professional manner. Section 20 of the IBC provides that the interim resolution professional shall make an endeavour to protect and preserve the value of the property of the corporate debtor and manage the operations of the corporate debtor as a going concern. The interim resolution professionals are also empowered to constitute a committee of creditors after collation of all claims received against the corporate debtor and on determination of the financial position of the corporate debtor in view of Section 21 of the IBC. The committee of creditors is empowered to appoint the resolution professionals under Section 22 of the IBC. The resolution professionals are required to conduct corporate insolvency resolution process, in view of Section 23 of the IBC. The duties of the resolution professionals are provided for under Section 25 of the IBC. The submissions of the resolution plan and the approval thereof is provided under Sections 30 and 31 of the Code.22. In view of the provisions of the IBC, the very object of formation of the JLF and the execution of MRA by almost all the majority members and stakeholders of the JLF, can be taken care of, even under the proceedings initiated before the adjudicating authority. The instant petition is presented by the Corporate, objecting to the directions issued by the RBI to the SBI, which is a lead member of the JLF. The JLF is the forum of the creditors of Petitioner Company. It is the JLF, which had conducted meetings for arriving at a credit restructuring plan and for preparation of MRA. The CRAs in respect of which, an objection is raised by the Petitioner company were appointed by the JLF and as per the directions of the RBI, the another credit rating company i.e. IRRPL was appointed. It is the JLF, which has arrived at the MRA, which has not yet been operationalized. The directives issued by the RBI are binding on all the members of the JLF. The Petitioner in the instant Petition, is virtually seeking a direction against the JLF not to proceed with the matter before the adjudicating authority under the IBC and to virtually disregard the directives. In fact, those directives issued to the JLF and initiation of proceedings under IBC before the adjudicating authority is a subject matter of grievance by the Petitioner company. It is the Petitioner company, as recorded above, which has not brought in the upfront contribution, mandated under the directives of the RBI and as instructed by JLF. One of the CRAs appointed by the RBI does not find the residual debt of the Petitioner to be investment grade and thirdly, all the lenders have not signed the MRA. Considering these factors, it is difficult to accept the contention of the Petitioner that the MRA has been operationalized. In view of the policy declared by the RBI on 12 February 2018, since the scheme itself has been withdrawn, any direction for implementation and enforcement of the said scheme, cannot be issued. This court cannot be unmindful of the fact that the RBI has withdrawn all the schemes relating to the financial restructuring, by declaring new financial policy on 12 February 2018. The new policy appears to have been declared by RBI for the reason that the NPA, in the Nationalized banks, have touched almost 8 lakhs crores. In the instant matter also, the financial exposure of the Petitioner company is more than Rs.4000 crores, as has been recorded above, the financial policies and the financial matters, falling within the exclusive jurisdiction of the RBI, need not be scrutinized by the Court, since the Court do not possess required expertize in the financial and economic field. | 0 | 5,802 | 3,307 | ### 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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any doctrinaire or straitjacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud (354 US 457 : 1 L Ed 2d 1485 (1957) where Frankfurter, J. said in his inimitable style:In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative Judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error the bewildering conflict of the experts, and the number of times the judges have been overruled by events selflimitation can be seen to be the path to judicial wisdom and institutional prestige and stability.20. The principles laid down in the matter of Peerless General Finance and Investment Co. Limited & Anr.(Supra) have been reiterated by the Supreme Court in Balco Employees Union (Regd.) Vs. Union of India & Ors . (2002) 2 SCC 333 ).21. There cannot be disagreement as regards the object of JLF in making efforts to execute MRA, is to ensure a resolution and restructuring of the corporate debt. The process of resolution is also provided under ChapterII of the Insolvency and Bankruptcy Code, 2016. The corporate debtor or a financial creditor or an operational creditor can initiate corporate resolution process in view of Sections 6 and 7 of the IBC. An operational creditor may also approach for insolvency resolution under Section 8 of the IBC. There is a time limit prescribed for insolvency resolution process, so also a declaration of moratorium and public announcement is provided under Sections 13 and 14 of the IBC. During the pendency of the insolvency resolution proceedings, in order to manage the affairs of the corporate debtor interim resolution professionals can be appointed, who are expected to manage the assets, finances and operation of the corporate debtor, in a professional manner. Section 20 of the IBC provides that the interim resolution professional shall make an endeavour to protect and preserve the value of the property of the corporate debtor and manage the operations of the corporate debtor as a going concern. The interim resolution professionals are also empowered to constitute a committee of creditors after collation of all claims received against the corporate debtor and on determination of the financial position of the corporate debtor in view of Section 21 of the IBC. The committee of creditors is empowered to appoint the resolution professionals under Section 22 of the IBC. The resolution professionals are required to conduct corporate insolvency resolution process, in view of Section 23 of the IBC. The duties of the resolution professionals are provided for under Section 25 of the IBC. The submissions of the resolution plan and the approval thereof is provided under Sections 30 and 31 of the Code.22. In view of the provisions of the IBC, the very object of formation of the JLF and the execution of MRA by almost all the majority members and stakeholders of the JLF, can be taken care of, even under the proceedings initiated before the adjudicating authority. The instant petition is presented by the Corporate, objecting to the directions issued by the RBI to the SBI, which is a lead member of the JLF. The JLF is the forum of the creditors of Petitioner Company. It is the JLF, which had conducted meetings for arriving at a credit restructuring plan and for preparation of MRA. The CRAs in respect of which, an objection is raised by the Petitioner company were appointed by the JLF and as per the directions of the RBI, the another credit rating company i.e. IRRPL was appointed. It is the JLF, which has arrived at the MRA, which has not yet been operationalized. The directives issued by the RBI are binding on all the members of the JLF. The Petitioner in the instant Petition, is virtually seeking a direction against the JLF not to proceed with the matter before the adjudicating authority under the IBC and to virtually disregard the directives. In fact, those directives issued to the JLF and initiation of proceedings under IBC before the adjudicating authority is a subject matter of grievance by the Petitioner company. It is the Petitioner company, as recorded above, which has not brought in the upfront contribution, mandated under the directives of the RBI and as instructed by JLF. One of the CRAs appointed by the RBI does not find the residual debt of the Petitioner to be investment grade and thirdly, all the lenders have not signed the MRA. Considering these factors, it is difficult to accept the contention of the Petitioner that the MRA has been operationalized. In view of the policy declared by the RBI on 12 February 2018, since the scheme itself has been withdrawn, any direction for implementation and enforcement of the said scheme, cannot be issued. This court cannot be unmindful of the fact that the RBI has withdrawn all the schemes relating to the financial restructuring, by declaring new financial policy on 12 February 2018. The new policy appears to have been declared by RBI for the reason that the NPA, in the Nationalized banks, have touched almost 8 lakhs crores. In the instant matter also, the financial exposure of the Petitioner company is more than Rs.4000 crores, as has been recorded above, the financial policies and the financial matters, falling within the exclusive jurisdiction of the RBI, need not be scrutinized by the Court, since the Court do not possess required expertize in the financial and economic field.
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two lenders did not exercise their right to exit in accordance with circular dated 25 February 2016. The restructuring package has not come into operation much less, it has not been implemented.18. As has been recorded above, the three required essentials(i) the required credit opinions for the resolution plans are available from two CRAs; (ii) the master restructuring agreement signed by all the parties and; (iii) the requirements relating to the promoters contribution to be brought upfront and personal guarantees to be provided by the promoters, have not at all been fulfilled and in view of above, the requirement in respect of the implementation of the resolution plans has not been fulfilled. The insolvency proceedings have already been initiated by the SBI in terms of the directives issued by theis well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the Courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters, even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts.There cannot be disagreement as regards the object of JLF in making efforts to execute MRA, is to ensure a resolution and restructuring of the corporate debt. The process of resolution is also provided under ChapterII of the Insolvency and Bankruptcy Code, 2016. The corporate debtor or a financial creditor or an operational creditor can initiate corporate resolution process in view of Sections 6 and 7 of the IBC. An operational creditor may also approach for insolvency resolution under Section 8 of the IBC. There is a time limit prescribed for insolvency resolution process, so also a declaration of moratorium and public announcement is provided under Sections 13 and 14 of the IBC. During the pendency of the insolvency resolution proceedings, in order to manage the affairs of the corporate debtor interim resolution professionals can be appointed, who are expected to manage the assets, finances and operation of the corporate debtor, in a professional manner. Section 20 of the IBC provides that the interim resolution professional shall make an endeavour to protect and preserve the value of the property of the corporate debtor and manage the operations of the corporate debtor as a going concern. The interim resolution professionals are also empowered to constitute a committee of creditors after collation of all claims received against the corporate debtor and on determination of the financial position of the corporate debtor in view of Section 21 of the IBC. The committee of creditors is empowered to appoint the resolution professionals under Section 22 of the IBC. The resolution professionals are required to conduct corporate insolvency resolution process, in view of Section 23 of the IBC. The duties of the resolution professionals are provided for under Section 25 of the IBC. The submissions of the resolution plan and the approval thereof is provided under Sections 30 and 31 of the Code.22. In view of the provisions of the IBC, the very object of formation of the JLF and the execution of MRA by almost all the majority members and stakeholders of the JLF, can be taken care of, even under the proceedings initiated before the adjudicating authority. The instant petition is presented by the Corporate, objecting to the directions issued by the RBI to the SBI, which is a lead member of the JLF. The JLF is the forum of the creditors of Petitioner Company. It is the JLF, which had conducted meetings for arriving at a credit restructuring plan and for preparation of MRA. The CRAs in respect of which, an objection is raised by the Petitioner company were appointed by the JLF and as per the directions of the RBI, the another credit rating company i.e. IRRPL was appointed. It is the JLF, which has arrived at the MRA, which has not yet been operationalized. The directives issued by the RBI are binding on all the members of the JLF. The Petitioner in the instant Petition, is virtually seeking a direction against the JLF not to proceed with the matter before the adjudicating authority under the IBC and to virtually disregard the directives. In fact, those directives issued to the JLF and initiation of proceedings under IBC before the adjudicating authority is a subject matter of grievance by the Petitioner company. It is the Petitioner company, as recorded above, which has not brought in the upfront contribution, mandated under the directives of the RBI and as instructed by JLF. One of the CRAs appointed by the RBI does not find the residual debt of the Petitioner to be investment grade and thirdly, all the lenders have not signed the MRA. Considering these factors, it is difficult to accept the contention of the Petitioner that the MRA has been operationalized. In view of the policy declared by the RBI on 12 February 2018, since the scheme itself has been withdrawn, any direction for implementation and enforcement of the said scheme, cannot be issued. This court cannot be unmindful of the fact that the RBI has withdrawn all the schemes relating to the financial restructuring, by declaring new financial policy on 12 February 2018. The new policy appears to have been declared by RBI for the reason that the NPA, in the Nationalized banks, have touched almost 8 lakhs crores. In the instant matter also, the financial exposure of the Petitioner company is more than Rs.4000 crores, as has been recorded above, the financial policies and the financial matters, falling within the exclusive jurisdiction of the RBI, need not be scrutinized by the Court, since the Court do not possess required expertize in the financial and economic field.
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Unit Trust of India & Others Vs. Om Prakash Berlia & Others | date on which the plaintiffs filed the suit the period for exercising option had already expired. Thus, granting any decree on the basis of the alleged mala fides would be prejudicial to the defendants. This is more so when the nature of the transaction was to be that of debentures with an option to convert 20 % thereof into equity shares. Thus, it would be unconscionable to allow the plaintiffs any relief on the basis of the alleged mala fides. We would, therefore, hold that the plaintiffs suit would be barred by equitable principles of acquiescence and ratification.112. Rectification of share register is contemplated by section 155 of the Companies Act. There cannot be any serious dispute, though Mr. Cooper does not accept this position, that rectification is a discretionary relief.113. This aspect is considered in the case of Bellerby v. Rowland & Marwood s Steamship Co. Ltd. [1901] 2 ch 265 (Ch D). In that case, the directors surrendered certain shares of theirs to the company. On account of that surrender the liability for the uncalled shares came to an end. Surrender was made so as to relieve the company of the losses. After some time the companys business became prosperous. The directors filed an application for rectification of the share register for reintroducing their names in the register. It was alleged that the transaction of surrender of shares was bad. The court found that the transaction was bad, however, rectification was refused by holding that the discretionary relief should not be granted. The relevant observations on p. 273 are as follows :"It does not follow that because the surrenders of shares were bad the plaintiffs are now entitled to succeed in their claim to be restored to the register In respect of them. The power of rectifying the register given by the 35th section of the Act of 1862 is discretionary in this sense-that the court properly can only exercise it if satisfied of the justice of the case, and on many applications the court has declined to exercise this power on the ground that it would not be fair to do so, or, to put it more technically, that the applicant has not established any equity to disturb the existing state of things. And, in considering this, the court has always had regard to the lapse of time, and to any facts and circumstances indicating acquiescence in the existing state of things by those on whose behalf the application is made to disturb it."114. The discretion can be exercised by passing orders which would be appropriate in a given set of circumstances. The case, In re Sussex Brick Co. Ltd. [1904 1 Ch.D. 598 (CA), is relevant in this respect. Certain shares were transferred on March 3, 1903, under the articles of association. The transferor is to be deemed to remain holder until the name of the transferee was entered in the register. On March 14, 1903, the transferee applied to the company for transfer of the shares. The share certificates were also sent to the company. On March 14, 1903, the company sent a reply acknowledging the receipt of the transfer application. The transferee was informed that new certificates would be ready by March 28, 1903, after placing the matter before the board of directors. However, in between, the Secretary resigned and another person was appointed in his place. He did not place the transfer application before the board. The transferee, therefore, wrote to the company asking for the transfer certificates. In the meantime, winding-up proceedings began. The transferee gave a notice of dissent regarding the resolution of winding up. The liquidator refused to take cognisance of the notice as the transfer was not registered. The transferee made an application for rectification of the register. The court granted rectification but from the date on which the order was passed. The contention of the transferee was that the rectification should have been made with effect from the date on which the shares ought to have been transferred. The transferee, therefore, took the matter in appeal. By applying the principle Nune pro time, the appeal was allowed. The court held that it should make an order that the registration should be treated as rectified from the time it ought to have been so rectified.115. Mr. Nariman urged that this case would show that at any rate the rectification of the register should have been ordered by directing that the entry dated 5th June, 1979, be deleted but at the same time there should be an entry in the share register dated June 30, 1979 (i.e. the day, a month after the notice), showing that the disputed shares have been transferred to the concerned financial institutions.116. Mr. Cooper urged that the present proceedings are not an application under Section 155 of the Act as the plaintiffs have field a substantive suit for the rectification of the register and consequential declaration. On principle, we do not find that there can be any difference simply because the plaintiffs have filed the suit. Before filing of the suit, the plaintiffs had made an application under Section 155 of the Companies Act. That application was withdrawn on the ground that the matter involved a complicated question. But this would (not ) alter the position in favour of the plaintiffs. Otherwise there would be an anomaly, i.e., the relief would be discretionary if an application is filed under Section 144; while the court would be bound to grant a rectification decision if the chooses to file a suit. In our opinion, rectification of share register, whether claimed in an application under Section 155 of the Act or in a substantive suit would be a discretionary relief. The present case does not appear to be a fit one for granting such an equitable relief particularly when we take into account the conduct of the plaintiffs as well as the precarious position to which the defendants would be reduced if the allotment of shares is cancelled. | 0[ds]5. During the course of the hearing, some statements have been made by Mr. Cooper giving up certain points. In addition some other points were not pressed before the learned single judge. Hence, we do not propose to give the detailed and verbose averments in the plaint and consequent detailed denials of these allegations. The appeal memos and theare equally lengthy and contain many grounds. In this background we propose to follow the procedure of referring only to those relevant points that are argued before us and at that time, if necessary, we would give the concerned details of the pleadings.6. Both the plaintiffs had no concern with NRC at any time before April, 1977. It is in this month that plaintiff No. 1 became a holder of 2,736 shares of NRC. It seems that before April, 1977, the affairs of NRC were being conducted in a manner prejudicial to the interest of the company and also of the members. Hence, on 11th July, 1977, the company law board passed an order (Exhibit B, Partpage 1202 of theunder Section 408(1) of the Companies Act, appointing eight directors for a period of three years. Shri R. K. Talwar was named as the chairman. However, as he declined to accept the appointment, Shri B. R. Patel was appointed as the chairman in his place on 5th August, 1977.7. It seems that the company was in financial difficulties and was in need of loans. There is no dispute that loans to the extent of Rs. 408 lakh were advanced by the financial institutions. In this case, we are concerned with the loan of Rs. 350(1) is not relevant for our purpose. It is clear that under(1A) the company can allot shares in favour of anybody provided there is a special resolution to that effect. In the absence of such resolution, there should be an ordinary resolution but in the latter case the Central Government must be satisfied that the proposal is beneficial to the company.(3) permits another mode of allotment of shares. This can be done by exercise of the option to convert the debentures into shares. However, the terms providing such option must be approved by the Central Govt. Financial institutions (namely, defendants Nos. 1 to 7) are the specified institutions as contemplated by prov. (4) to(3) and hence there is no need of having any resolution of the company. This prov. (4) has been challenged by the plaintiffs as ultra vires the Constitution. But that aspect can be conveniently kept aside for the present. There is no dispute that if the suit transaction is ere allotment of shares of 20 per cent. of loan, it falls under(1A) and the allotment of shares would be bad because there is no special resolution and there is no ordinary resolution coupled with the approval of the Central Govt. similarly, the allotment of shares in favour of defendants Nos. 1 to 7 would be good if the allotment complies with the provisions of(3). It is in this background that the plaintiffs have contended that the true and real nature of the transactions is straight allotment of shares while the defendants contend that the allotment was in exercise of the option instated earlier, the plaintiffs have given up certain contentions either before the recording of the evidence or at the time of the arguments. The pleading as to the nature of the transaction appears in para.we do not propose to reject the contention of the plaintiffs on this ground alone as the matter has been argued before us at great length on the basis of the documents that are available on record. We think that it will be appropriate to discuss the merits or otherwise of the plaintiffs contentions about the nature of theWe have already observed that UTI has agreed by its letter dated 17th January, 1978, to give financial assistance of Rs. 50 lakh for Nylon Tyre Cord Project. On 6th June, 1978, UTI wrote a letter (Ex.A, page 1604 of the paper book) giving a notice to NRC of the intention of UTI to acquire fully paid up shares in lieu of conversion for the amount of Rs. 10 lakh at the rate of Rs. 100 per share with a premium of Rs. 60 per share. In the letter, it is stated that NRC should get the debenture trust executed for the remaining amount of Rs. 40 lakh. UTI wrote a similar letter dated 8th June, 1978, (Ex.A, page 1612 of the paper book, so far as the acquisition of shares of 60 lakh (from out of the transaction of Rs. 300 lakh). It is not necessary to give the contents of this letter as it is worded practically in terms of the letter dated 6th June, 1978.As already observed, the letter dated 17th January, 1978, completely supports the defendants. By that letter UTI has offered a financial assistance of Rs. 50 lakh. This letter gives the various terms and conditions of the said offer. It is not necessary to reproduce all the various terms. Suffice it so say that the tenor of the letter is to render financial assistance on the basis of the private debentures. Condition No. 4 says that the commitment under the letter shall be deemed to have been fully discharged on the UTI making an application for the debentures of Rs. 50 lakh. There are some terms dealing with the rate of interest and the mode of redemption of the debentures.While under condition No. 17, it is provided that the draft trust deed should be submitted for the approval of the UTI for being finalised, the letter is closed with a statement that the offer by that letter should not be treated as binding unless the debenture trust deed is executed by the company in such form as may be required by the UTI. Thus, the plaintiffs would not be able to make use of any of the contents of this letter in support of theirhave already observed above that Mr. Cooper relies upon condition No. 7. in that letter. The said condition is reproduced in paragraph No. 17. That condition says that the option was to acquire in lieu of conversion equity shares of Rs. 60 lakh inclusive of premium. The term "in lieu of" would normally mean "by substitution of" and it is in this way that Mr. Cooper urged that there was not to be any conversion at all but what was agreed was the allotment of shares in substitution of the conversion clause. It is true that condition No. 7 read by itself would convey this meaning but what is urged by Mr. Nariman is that the rest of the contents of the letter should also be taken into account for the purpose of deciding as to what was the overall intention of the UTI when it wrote the letter. Before mentioning the various conditions, UTI has informed NRC that the financial assistance from the UTI would be in the form of subscription to the privately placed debentures of Rs. 300 lakh. It then states that those debentures will be on the condition that follow. Condition No. 1 states that the offer to subscribe for such debentures will be open during the end of November, 1978, or such extended period. According to condition No. 3, the commitment of UTI shall be deemed to have been discharged as soon as the application for Rs. 300 lakh face value on debentures would be made. As per condition No. 8, it is provided that the NRC should agree to the free transfer of the shares obtained by the trust through conversion. Under condition No. 15, the debenture trust is required to be submitted to the UTI for approval before completing it and any alterations or changes suggested or indicated by UTI required to be incorporated therein. Condition No. 24 provides that the company should obtain the necessary consent, approval, etc., from the Government authorities for the issue of requisite debentures. The letter is wound up by saying the offer will not be binding unless the debenture trust is executed by the company in such form as may be required by UTI. UTI asked NRC to confirm the terms and conditions mentioned in the letter for subscription by UTI to the debentures are acceptable. It is thus clear that expect condition No. 7, all the rest of the conditions and other parts of the letter are consistent with the defendants version that what was really contemplated was the convertible debentures and not direct allotment of shares. The offer was to have debentures of Rs. 300 lakh and this connotes that initially the entire loan was of Rs. 300 lakh debentures. Similarly, it was specially provided that the debenture trust has got to be approved by UTI before it was executed by the company. Mr. Cooper is right when he contends that condition No. 7 read by itself may support the plaintiffs case. At the same time Mr. Nariman is also right when he urges that all that the rest of the letter indicates is that the parties wanted to have the usual convertible debentures. As to how such a type of document has to be construed by the Supreme Court in the case of Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 Supreme Court 2609. It was a case dealing with the construction of a document of lease. Through the document intended to create a lease of 90 years, still there were certain clauses which conveyed a meaning that the lease was to be for 20 years. The Supreme Court considered that particular provision, which carried such a meaning, in the background of the rest of the contents of the document and has held that such a clause should not be torn off from thein this letter there is a mention of the GIC letter dated 16th October, 1978, there is also an additional statement that NIA was agreeable to contribute Rs. 10 lakh on the basis of debentures subject to the condition that NIA will have a right to convert 20% of the debentures (i.e., Rs. 2 lakh debentures) into equity shares. Thus, the other financial institutions (participating in the financial assistance in question) namely, ICICI and NIA have written that the transaction would be on the basis of debentures with the usual option. They have not asked for immediate allotment of shares. As against this, the GIC has stated that it would get the shares in lieu of conversion. But it has not asked for allotment of shares immediately. The other subsidiaries of GIC (except NIA) have only stated that they were ready to participate on terms proposed by GIC. As the transaction of Rs. 350 lakh is pleaded by the plaintiffs as one composite transaction, the fact that ICICI and NIA wanted to have a transaction of usual debentures with option to convert a part into shares, will also be relevant J. In this background, it will be very difficult for Mr. Cooper to contend that the letter dated 1st June, 1978, should be interpreted in favour of the plaintiffs for assessing the exact nature of the transaction.31. The three letters dated 1st June, 1978, 6th June, 1978, and 8th June, 1978, were written after the matter was processed by the UTI and IIM. Exhibit 7, partp. 3481 is a note prepared by the secretary of the UTI for the circular resolution to be approved by the executive committee. The note clearly states that the financial assistance would be in the form of privately placed debentures and that the trust would exercise its rights to convert Rs. 60 lakh, (20% of the proposed assistance) into equity shares.All these various recitals in the debenture trust deed show as to how the parties understood the previous correspondence between them and how they treated that transaction as the convertible debentures of Rs. 350 lakh and not that of direct allotment of shares to the tune of Rs. 70 lakh and the debentures of Rs. 280 lakh. The loan agreements mentioned in the debenture trust deed are in fact the correspondence between the parties and this correspondence has been treated by the parties in a particular fashion. It will be very difficult to accept the contention of Mr. Cooper that though the parties intended to construe certain correspondence in a particular manner, still the court should interpret it in another manner. This is more so when the surrounding circumstances including the various actions taken by the parties in further finalisation of the matter are consistent with the transaction being that of convertible debentures.39. On the very day, i.e., 31st May, 1979, the following further events have taken place. It appears that the financial institutions gave letters for subscription of the respective debentures in their favour. The letters of allotment of debentures were issued. This fact is admitted in para. 73(d) of the plaint. Mr. Cooper, learned counsel for the plaintiffs wanted to get over this admission by reference to the recitals at some other place. However, the admission is so clear that it would not be possible to accept the submission. Each of the financial institutions gave a notice exercising the option to convert 20% of its debentures into equity shares. These notices are at (Ex Z1, partpp. 2388 to 2499). The notice are similarly worded and it would be sufficient if we make a mention to the contents of one of those notices. For example, in the notice issued by UTI (Ex.there is a reference to the correspondence dated 31st January and 1st June 1978, and to clause (4)(a) of the debenture trust. The notice then states that in terms thereof, the UTI is entitled to call for an allotment of 31,250 fully paid up shares and that, therefore, the UTI was giving a notice to convert with immediate effect 5000 debentures from "A" series into 31,250 fully paid up equity shares. There is a minor change in other notices so far as the number of shares that were to be demanded on such conversion. On 5th June, 1979, the NRC passed necessary resolution for the allotment of shares on such conversion and this allotment is of 43,750 shares (so far as this litigation is concerned) as detailed in para. 1 above. Section 75 of the Companies Act, 1956, requires filing of the returns with the Registrar of Companies for the allotment of such shares and the said return has been filed on 27th June, 1979 (vide Ex. 17, partp. 3578). All this is again consistent with the defendants case.40. As stated above on May 31,1979, a number of events have taken place. The debenture trust deed was executed. The financial institutions sent letters of subscription to the privately placed debentures. On the same day, the company issued letters of allotment of debentures. The financial institutions then issued notices of converting 20% of debentures into equity shares. These transactions were preceded by letter dated May 29,1979, from Amarchand Mangaldas, the common attorney of the financial institutions and the company that the transaction has been decided to be completed on May 31, 1979. A note attached to the letter also indicates as to various actions to be taken for completing the transaction and these actions included the execution of the trust deed, applications for debentures, issue of allotment letters and issue of conversion notice. Mr. Cooper contended that the various happenings of May 31,1979, would indicate that the parties had predetermined that on the date of the debenture trust deed itself, the necessary consequential documents including conversion notice should be completed. He also argued that the term "option" contemplates that the concerned party should have a choice and if there is no scope of such a choice account of theof the course of action, the transaction would be not of debentures with a conversion clause. In our opinion, these circumstances would not indicate that the nature of the transaction was that of an allotment of shares. A party which intends to have a conversion clause in the debentures can very well take a prior decision that it would exercise the option of conversion and if such a decision is taken, such a party would necessarily act in the manner in which the financial institutions have acted here. Hence, the fact that various documents came into existence on May 31,1979, cannot be construed in favour of the plaintiffs. The trust deed dated May 31,1979, provides for the exercise of the option within two years from June 15,1978, to June 14,1980. This covers the period even prior to the execution of the trust deed, i.e., a period from June 15,1978, to May 31, 1979. It is true that two years period of option mentioned in the debenture trust deed also covers a part of the period earlier to the execution of the documents. However, Nareshchandra Singhal, who is working with ICICI for a number of years, has made the position clear. The witness wasin order to find out as to whether there were any instances where the documents had provided the period of conversion so as to include some period earlier to the execution of the document. The witness has stated that there were such instances. Mr. Cooper asked the witness to produce certain statements in that respect. Singhal has produced at Ex.part II, p. 3232 onwards, such a statement. It is not necessary to go into the details thereof. Suffice it to say that at serial No. 1 in the statement there is a loan transaction of Rs. 158 lakh which was given to Balarpur Industries Ltd., on June 15,1981. However, the option to convert a part of the loan into equity shares was agreed to be exercised between February 1, 1979, to July 31,1981. This means that the period of conversion had already commenced long before the loan was advanced. Similar is the case of loans to J. K. Synthetics, Rallis India Limited and Raymond Woollen Mills Ltd. The witness was also asked to produce a statement as to whether there have been instances when the option was agreed to be exercised not during the fixed period but at any time during the currency of the loan. Entry at Serial No. 2 of part II of the statement (p. 3234) shows that Rs. 11,00,000 were granted to Nagpal Petrochem on March 4,1980, and the option was to be exercised during the currency of the loan. The option was exercised within about 10 days, i.e., on 14th March, 1980. The more important item is about the loan of Rs. 60 lakh to Motor Industries (serial No. 3, p. 3234). On October 1,1973, Rs. 60 lakh were advanced on debentures. The period of conversion was stipulated to be before 3rd October, 1973, i.e., 2 days from the date of the issue of the loan. A copy of the relevant contract of the allotment of shares in this case is at p. 3237. It shows that the parties had agreed that the conversion should be exercised by giving a fortnights notice in writing. However, the option was exercised on the very day on which the loan was advanced and the shares were also allotted on the same day. It would thus be seen that the exercise of option and the allotment of shares on the day on which the loan was advanced is not the peculiar feature of the suit transaction. Similarly, a provision of prescribing a period of conversion beginning from the date earlier to the grant of loan is not abnormal. Hence these factors are irrelevant to consider the nature of thewould thus be clear that all these documents do not support the plaintiffs case. On the contrary, the tenor of these documents is that the parties intended to have convertible debentures.42. On March 6,1980, the Company Law Board (hereinafter referred to as "the CLB"), approved the election and appointment of plaintiff No. 2 as a director of the NRC. The statements of accounts for the year 1979 and the directors report were placed before the AGM held on May 25,1980. The annual report of 1979 coupled with theand the statements of account, is at pages 207 to 267 of vol. 8. On p. 220 of the directors report, there is a mention of the allotment of shares on conversion. Obviously, this conversion also included the debentures and the conversion in question. On p. 234, the share capital in the yearis mentioned. The capital was increased in 1979 by 51,000 shares. There is also a reference to the premium on shares received in that year. Plaintiff No. 1 was present in the said meeting while the directors report and thehave been prepared by the board of directors, in which plaintiff No. 2 was one of them.43. It would thus be clear that all the correspondence and the documents except a part of the letter dated June 1, 1978, and the two letters dated June 6,1978, and June 8, 1978, consistently speak of the transaction being that of convertible debentures and not of the direct allotment of the shares. We may add that it is material to note that the plaintiffs have not referred to the two letters dated June 6,1978, and June 8,1978, in their plaint. The plaint is silent about these letters. Similarly, the trust deed also does not refer to these two letters. For all these reasons it will not be possible to hold that the parties ever intended a direct allotment of shares as contemplated by Section 81(1A) of the Act. This is more so when we look to certain guidelines issued by the Government as to how the financial institutions should behave while advancing loan to others.Clause 3(A) provides that the convertibility clause should conform to the provisions of Section 81(3) of the Companies Act. Clause 6 deals with mechanics of conversion and it provides that the concerned financial institutions should in consultation with the Industrial Development Bank determine the maximum amount of loan which can be converted into equity capital. Under clause 8, it was decided that separate guidelines would be issued for the exercise or waiver of the option clause and that pending such guidelines, the financial institutions may take a decision in consultation with the Industrial Development Bank. It is these guidelines that were available when IIM was held on 31st May, 1978. There are further guidelines dated 17th November, 1978, dealing with the extent of option and as to how the option is to be exercised. They state that in the case of existing companies not doing very well, the period for exercising the option should be fixed after the scheme for which the financial assistance is to be extended is completed and the company is in a position to pay a reasonable dividend. The grievance of Mr. Cooper is that these guidelines of November 17,1978, have not been properly followed as the financial institutions were allowed to exercise the option within two years, i.e., even before the modernisation programme was completed. It is this modernisation programme for which a major part of the financial assistance of Rs. 350 lakh was sanctioned. It is very material to note that the said guidelines appear to have been framed by the financial institutions including the Industrial Development Bank. The IIM dated May 31,1978, was attended by all the financial institutions as also by the Industrial Development Bank and it is in this meeting that the period of conversion is determined as between June 15,1978, to June 14,1980. In this background it will not be possible to accept the contention of Mr. Cooper that it was necessary to have a further decision about the period of conversion. Apart from that, Mr. Cooper did not contend that such alleged breach would itself make the transaction as that of direct allotment ofare not able to accept this contention. Thus, here is a case where the government guidelines specifically provide that any assistance exceeding Rs. 50 lakh must contain a convertibility clause. These financial institutions, viz., defendants 1 to 7, are expected to follow these guidelines and their contention is that they have actually followed the guidelines by entering into a transaction which contained a convertibility clause. The existence of the guidelines which makes imperative to have such a convertibility clause goes against the plaintiffs case and it will not be possible to hold that in spite of such a clause, the parties intended to have an agreement of the direct allotment of shares when issuing the debentures in question.45. Certain arguments were advanced before us by Mr. Cooper as to how the NRC and the financial institutions hurriedly processed the matter of the additional loan of Rs. 300 lakh. We have already mentioned that when the NRC informed the UTI that the NRC intended to have a loan Rs. 1 crore from the consortium of banks, the UTI voluntarily agreed to render this assistance on the ground that the banks assistance would be costly from the interest point of view. It was urged that UTI had no business to make such a voluntary offer. It is common ground that the UTI and certain other financial institutions were holding a number of shares in the NRC. The company was in doldrums and hence the Government has appointed its own directors in 1977. In this background, the move by the UTI to offer the loan which would be more beneficial as compared to the loan from the bank is understandable and there is nothing sinister in it. It was then urged that the matter was processed in an undue haste. On May 29,1978, the NRC wrote to the UTI about the need of an additional assistance of Rs. 408 lakh for the modernisation programme. A tentative note about this programme was attached to this letter and the letter states that the figures were tentative. Witness, Atmaramani, who is the Joint General Manager (Investment) of the UTI immediately prepared the note about this request of the NRC and the said note was placed before IIM held on May 31,1979. A great deal ofof Mr. Atmaramani deals with this aspect. Certain suggestions were made that the letter dated May 29,1978 was not in fact received on that day from the NRC but it was received later on. The inward register of the UTI shows that the letter was inward on 4th JUNE, 1978, which was a Sunday. But it appears that there were also other entries in the register of that day. A comment was also made that this inward entry is not in the usual inward registers of letters but is in the inward register of documents. It is, however, material to note that this letter dated May 29,1978, from the NRC has been referred in the report of Mr. Atmaramani. Not only that there is a reference to this letter in the subsequent correspondence between the NRC and the UTI dated June 1, 1978 (p. 1588) and dated June 2,1978 (p. 1603). A copy of the letter was forwarded to the CLB by the NRC itself on July 6,1978. This can be seen from p. 1714. The usual practise of sanctioning the loan by the financial institutions is to have a detailed prior appraisal of the proposal made by the applicant company. In the present case, the IIM sanctioned the loan without such an appraisal and the argument of Mr. Cooper is that this hurry would indicate that the transaction of allotment of shares in that of direct allotment of the shares. The IIM resolution specifies that the sanction is subject to the detailed appraisal. Mr. Atmaramani has given an explanation as to why the detailed appraisal was postponed to a later date. He has stated that he had discussions with Trivedi of NRC and, at that time, Mr. Atmaramani was informed that a decision about the sanction was urgently necessary so that the company could pass a resolution under Section 293 at its AGM scheduled in June, 1978. Mr. Atmaramani has also deposed that Trivedi told him that the company intended to take in hand modernisation programme immediately. Another reason for the urgency was that IIM was to be held within a couple of days and it was felt that the matter should be placed before IIM on that day. The detailed appraisal of the proposal was made in November, 1978. Mr. Cooper hasMr. Atmaramani as regards the difference in the original tentative proposal and the final proposal which was appraised in detail. There is also certainsuggestion that Mr. Atmaramani had no concern with this proposal. It seems that some time after completing the transaction the NRC wanted to alter the mode of expenditure of loanin this para. No. 73(e), the plaintiffs have alleged that the NRC was not at all in need of money so as to enter into a transaction of loan and debentures and that the suit transaction was a mala fide one. When Issue No. 20 pertaining to these allegations has not been pressed at the time of the argument in the court, we are not able to see as to how all the aboveof Mr. Atmaramani is relevant for deciding the nature of the transaction. It is for this reason that we do not propose to discuss in detail the various submissions made by Mr. Cooper that the company was not in any urgent need of the finances. As a matter of fact, we would like to state that at one stage of the argument Mr. Cooper did not challenge the financial need of the company. His grievance is that there was no urgent need. But this grievance falls in the background once the plaintiffs have given up their contentions in para. 73(e) of the plaint. At any rate this aspect has no bearing while considering the question as to whether the nature of the transaction is of direct allotment of shares to the extent of 20% of thedo not propose to go into this controversy as the said notes have no direct bearing when we have to consider the nature of the transaction in question and hence we are deciding the controversy without taking into account the said notes. It is not, therefore, necessary to discuss in detail the evidence of Singhal about the proof of these documents, Exs. 2 and 3.48. Thus all the evidence and the circumstances discussed above do not find favour with the plaintiffsevents are two fold, viz., (i) refusal by the NRC to register the shares purchased by Berlias, and (ii) the freezing order issued under Section 108D of the Companies Act.Plaintiff No. 1 became a shareholder of the NRC some time in April, 1977, and by that time he was holding about 2,736 shares. Thereafter, the plaintiffs acquired some more shares and they applied for registration of the transferred shares in their name. It appears that the NRC did not take an immediate action in that respect. Both the plaintiffs, therefore, filed Civil Suit No. 6691 of 1977 against the NRC and its directors for an order of the transfer of the shares in their favour. A similar Suit No. 6692 of 1977 was filed by the plaintiff No. 2 and Gurudayal Berlia with respect to certain other shares. These two suits covered 27,183 shares and 2,450 shares respectively.It is true that a link in a chain of correspondence would be relevant while considering the authorship but the Supreme Court has observed that in case of such links, the recipient of the document is able to speak about the authorship with the help of that link. In the present case, the plaintiffs have not led any evidence of the recipient of the letters. Similarly, the plaintiffs themselves have not entered the witness box to speak anything about the link of these documents forming a chain of correspondence. It is true that Mr. Cooper relied upon some other letters for the purpose of contending that the authorship of theletters should be held proved. But in our opinion, the procedure sought to be adopted by Mr. Cooper is too risky and flimsy to prove the authorship, particularly on account of the absence of the evidence of the recipient of the letters. It would not, therefore, be possible for Mr. Cooper to contend that the above letters should be admitted in evidence. However, the plaintiffs are relieved of the responsibility in this respect, so far as the letter markedfor identification which is similar to the letter, Ex.is concerned. Duringthe course of his argument, Mr. Nariman made a concession that this letter may be admitted inevidence. Accordingly, the said letter is marked as Ex.but the other two letters, namely, Exs.8, cannot be admitted in evidence. The admission or otherwise of these two letters as evidence would not make any serious difference when the letter, Ex.4. It is thus clear that the NRC had taken certain decisions not to transfer the shares in favour of Berlias. Mr. Cooper urged that this attitude was a purposeful one inasmuch as the then board of directors wanted to harass Berlias. It is true that the company was avoiding to transfer shares in favour of Berlias. However, theletter itself shows as to how the initial decision was taken not to transfer shares of anyone and how it was later on modified from time to time. The latter also indicates that the NRC agreed to transfer shares in favour of Berlias on account of the advice given by the advocates. We are not therefore, able to hold that the NRC was acting in any mala fide manner. It appears that the company entertained certain apprehensions against Kapadias and Berlias and hence initially it took a decision not to sanction the transfer of shares in favour of Berlias. The conduct of the NRC in applying for an appointment of an inspector and the fact that such an inspector was appointed is relevant. Taking into account all these factors, we do not think that this letter can be interpreted to mean that the NRC has taken any mala find decision to withhold transfers in favour of Berlias. All this, however, is about the transfer application made by Berlias inthese documents do show that the NRC refused to accept the transfer of certain shares in favour of Berlias and that in some cases, agreed to effect the transfer when proceedings were filed in court while in other matters, the court granted relief to Berlias by delivering judgement in their favour. Mr. Cooper is right when he contends that the NRC was avoiding the transfer of shares in favour of Berlias. However, the settlement of 1977 had given an option to NRC to consider new transfer applications on their merits. There is nothing on record to show the reasons for which the NRC had rejected the transfer application. But the absence of such reasons would not necessarily mean that the NRC wanted to act maliciously against Berlias particularly when the company had certain apprehensions as discussed above. The result therefore, is that thought the NRC had refused to transfer certain shares in favour of Berlias still that fact would not be a circumstance to suggest that the NRC in conjunction with the financial institutions decided to outvote Berlias by entering into a transaction of allotment of shares in the garb of debentures with a conversion option. Before closing this discussion, we may also observe that in all these proceedings there is no allegation that the financial institutions were behind the back of the NRC In Refusing the transfer of shares. In fact, the plaintiffs solicitor Mr. D. k. Pandya, has admitted that Berlias did not have any complaint against defendants Nos. 1 to 7 (financial institutions) In regard to the affairs of the NRC. Hence, this circumstance would not have much bearing while deciding the nature of theis not necessary to reproduce that order in detail. Suffice it to say that the Central Government directed the NRC not to give effect to any transfer of shares in favour of Berlias.The obvious result of the said order would have been that Berlias Group would not have been able to exercise their voting power on the basis of the additional shares purchased by them from time to time or on the basis of the proxies collected by them. We have already mentioned as to how Berlias filed Writ Petition No. 994 of 1978, and how certain conditional orders of injunction were passed under which Berlias undertook to vote the amended resolution to cover the additional loan amount of Rs. 300is true that immediately after this letter a formal freezing order dated June 17, 1978, was issued. However, it has to be borne in mind that the Government of India, i.e., its Department of Company Affairs and the Department of Economic Affairs, had already taken a decision on June 26, 1978, that necessary action under Section 108 should be taken. In the present litigation, we are not concerned much with the correctness or otherwise of that order but we have to see as to whether that order is on account of any joint efforts of the NRC and the financial institutions. The request of the NRC for such an order was already rejected in February, 1978. Thereafter, the two concerned Departments of the Govt. of India held a meeting and took certain decisions. There is nothing on record to show that either the NRC or the financial institutions have persuaded the Govt. of India to take any particular decision in the meeting. Under these circumstances, though a freezing order just prior to the AGM of 1978 was issued, still it will be very difficult for the plaintiffs to contend that such an order was a result of any move of the NRC and the financial institutions. At any rate, even if it is assumed that the said order was at the instance of the financial institutions, still it will not be possible to connect that order with the suit transaction for the purpose of deciding the nature of the suit transaction.61. These are the submissions that have been made by Mr. Cooper and Mr. Nariman as regards the nature of the transaction and we think that the learned single judge is right in holding that the transaction was not of any direct allotment of shares so as to contravene the provisions of Section 81(1)(a) or Section 81(1A) of the Companies Act. The nature of the transaction is thus that of debentures with an option to convert 20% of them into equityned clauses, we may also state that the debenture trust has defined the term "debenture" to mean the debenture issued and allotted to various financial institutions and the term "holder of the debenture" means the holders for the time being as entered in the register of debentures.In the present case, only letters of allotment have been issued to the financial institutions and the debentures proper have not been issued. Thus, there were no debentures so issued and consequently no entry in the register ofour opinion, all the above mentioned requirements did not constitute a condition precedent for exercising the option. All these provisions are meant to avoid any difficulty or problem as to who are the debenture holders and which debentures are to be converted into equityis true that the cases where such observations have been made arose when the company has neglected to issueour opinion, the issue of debentures though desirable, would not always be mandatory. Omission in this respect would be immaterial and innocuous particularly when the parties who are entitled to the debentures are not prejudicial affected. In the present case, the financial institutions as well as the NRC have acted in terms of the debenture trust deed. There is no grievance on the part of the financial institutions about theof the debentures. We have already observed that the letters of allotment have been issued by the NRC. Obviously, those letters make it clear as to in whose favour the debentures were to be issued. The actual issue of debentures would thus be a procedural aspect and an omission thereof would not vitiate the issue of shares onit is material to note that the financial institutions by their notice have exercised their option up to the maximum limits, viz., 20% of the total debentures. In that background, prior earmarking or appropriation of particular debentures for conversion was not at all necessary or mandatory. The parties contemplated that there should be one months notice for conversion. The notice given by the financial institutions is not such a type of notice. However, the case of the defendants is that the notice has been waived. Giving of one months notice is after all a contractual provision and the company would have a right to waiveour opinion, the omission of issuing separate debentures with the option clause does not make any difference inasmuch as the document provided conversion of 20% of the total debentures of Rs. 350 lakh. Thus, the object and meaning contemplated by the order of the Controller of Capital Issues has been achieved and conveyed by using different words. Consequently, there is no substance in the contention of Mr. Cooper that the debentures are not issued in terms of the approval of the saiddo not think that such a restricted meaning to the word "otherwise" should be given. If the debentures are within the powers of the board of directors, the term of option being a part of such debentures would also be within that very power. It will not, therefore, be possible for Mr. Cooper to contend that the option clause is bad in the absence of the resolution of the general body.70. The net result of the above discussion is that the transaction in question is not liable to be challenged on any of the grounds mentioned above.71. Before going to certain other points raised by the plaintiffs as well as by the defendants, we would like to dispose of the contention of the plaintiffs about the constitutional invalidity of Section 81(3) of the Companies Act. In a nutshell thatconfers powers on the Central Government to specify certain institutions. The effect of this specification is that in the case of debentures (with option to convert into equity shares a part of the debentures) to these institutions, it is not necessary that the proposal about the debentures is to be got approved by a special resolution of the company. In the present case, defendants Nos. 2 to 7 have been accordingly specified by the Government. The argument of Mr. Cooper is that the provision in Section 81(3) which enables the government to specify such institutions, grants wide untrammelled and unguided discretion to the government and that such a power without any guidelines would be bad as being violative of articles 14 and 19. With this submission Mr. Cooper wants to contend that if the power under Section 81(3) of specifying institution is bad, consequently, the specification of defendants Nos. 2 to 7 as the institutions under Section 81(3) would be bad. He further argued that in this background the grant of debentures with an option of conversion is itself bad. He also submitted that if the debentures are bad the conversion of a part of the debentures into shares would also be illegal. In our opinion, all these submissions are not tenable for two reasons. Mr. Cooper has made a statement during the course of the trial that the plaintiffs would not be challenging the debenture trust deed. It includes a conversion clause. the learned single judge has held that, after making such a statement, the plaintiffs cannot be allowed to impeach the validity of any part of the debenture trust deed by challenging the above provision of Section 81(3). We do not find anything wrong in this approach.72. Secondly, the very purpose of attacking the above mentioned provisions of Section 81(3) is to challenge the legality of an order of the Central Govt. by which defendants Nos. 2 to 7 have been specified as the institutions. It will not be possible for the plaintiffs to urge that they only want quashing of the above mentioned part of Section 81(3) without actually praying that the notifications issued under the impugned part of Section 81(3) should be quashed. The notification has been issued by the Central Govt. and the Central Govt. would be interested to defend the validity of the notification by contending that no part of Section 81(3) is unconstitutional. In that suit, the Union of India is not made ais true that a notice to the Attorney General is so provided. But if any notification is issued on the basis of the powers under a section which is challenged as unconstitutional, the authority which has issued the notification has every right to urge the validity of the notification on all the counts including the validity of the concerned section. It is for this reason that we told Mr. Cooper that we would not allow him to agitate this constitutional point when the Union of India is not a party to this litigation.73. The learned single judge has decreed the suit on the ground that waiver of one mouths notice was mala fide and that the issue of shares after such mala fide waiver was bad. This finding is challenged by Mr. Nariman, while Mr. Cooper argued that the said finding is correct. There were certain arguments advanced before us that the plaint did not contain the plea of mala fides. However, averments in para. 73D show that there is an averment that one months notice was mandatory and that such a notice cannot be waived.Thus, at the time when the parties led evidence there was a mere statement about the mistake but the plaint was not actually amended. There is, however, much substance in that contention of the defendants that the plaint is silent as to what was likely to happen in the intervening period of one month from 31st May, 1979, and how the financial institutions wanted to utilise the additional voting strength. It was rightly urged by Mr. Nariman that there should have been a specific pleading of particulars of mala fides. The absence of such a pleading is very much relevant. This is more so when Mr. Cooper submitted that an adverse inference should be drawn against the defendants as none of the directors have entered the witness box to depose as to why the notice was waived. In the first place, the plaint, as it stood at the time of evidence, did not specifically allege that the additional voting strength was to be utilised for the meeting of 1979. As stated earlier, the unamended portion of the plaint gave an indication that this additional voting strength was to be for the purpose of passing resolutions in the 1978 meeting. It is needless to state that in fact no controversial or debatable resolution was moved in the said meeting. To a certain extent the defendants can contend that they were taken by surprise by the above amendment of the plaint after the evidence was over. However, we cannot attach too much importance to this. But the other objections of Mr. Nariman is more relevant. The plaint did not contain any particulars of mala fides by alleging that any debatable or controversial topics or resolutions were intended to be brought before the meeting of 1979 either by Berlias or by anybody else.No specific case has been put to this witness in thethat there was particular hurry in 1978 and that the notice was waived in order to complete the transaction, maliciously and in a hurried manner. Similarly, no questions were put to Atmaramani inthat the financial institutions were in need of getting additional voting strength for the meeting ofwe are not able to accept the contention of Mr. Cooper that Atmaramani has not deposed anything about the happenings of 1979. At Ex.part II, p. 1925, of the paper book, there is a note dated April, 7,1979, prepared by the common advocates of the defendants as to how the transaction was to be finalised. It is made on the basis of the discussions that have taken place between the advocates and the representatives of the company as also of the financial institutions. The note shows that Atmaramani was present on behalf of UTI and the note states that the financial institutions indicated that the transaction should be completed by the end of May, 1979. The note also shows as to what steps were expected to be taken for the preparation of the draft debenture trust deed and the execution thereof. Certain other facts are also included in the note. Atmaramani was present on 31st May, 1979, when the transaction was completed. He has deposed that he has signed the subscription letter which is at Ex. 9 part II, p. 3500, of theNot only that but the notice of exercising option (Ex.part II, p. 2388) has also been given to the company under his signature and he had deposed that he handed over that notice to the company on 31st May, 1979. He has then added that he has attended the meeting of 28th June, 1979. It will not, therefore, be correct to say that Atmaramani has not deposed anything about the transaction including the giving of notice of exercising the option. In view of this position, we will not be able to accept the contention of Mr. Cooper that there was no necessity ofAtmaramani by putting the plaintiffs case about the alleged hurry or alleged mala fides in waiving the notice.79. All the above factors will be relevant while considering the contention that Mr. Cooper urged, that an adverse inference should be drawn because none of the directors have entered the witness box. Similarly, they would have relevance while appreciating the plaintiffs cases about the mala fides in waiving theis on the basis of these various circumstances that a submission was made that the waiver of notice was a mala fide one. The learned single judge has come to a conclusion that a prima facie case of mala fides in the waiver of notice has been made out and that it was necessary for the company to lead evidence to disprove this prima facie case. It is also observed that in the absence of such evidence, the plaintiffs would be entitled to succeed on the question of these mala fides. We have already observed the reason why the directors have not entered the witness box. But the more important question is whether, in fact, the plaintiffs have made our any case of mala fides.In addition Mr. Cooper did not advance any arguments before us to suggest that the allotment of shares is itself mala fide. The only mala fides alleged are with respect to the waiver of notice. The effect of the waiver was to accelerate the allotment of shares earlier, i.e., before the expiry of one months notice.83. It is true that by and large, the directors of the company are not expected to act maliciously or improperly and that the main idea in their mind should be the interest of the company.It is thus clear that the allotment of shares should not be made for any improper motive and if there is evidence of such motive, the allotment is liable to be struck down asis true that Mr. Nariman argued that the period of notice and its waiver would be a contractual obligation and the directors would not be under any fiduciary duty similar to one while allotting shares. However, one must not forget that the directors are not expected to act with any mala fide motive and Mr. Cooper would be right when he contends that the waiver of notice would be bad if mala fides areis, however, material to note that such a voting strength would have been acquired by the financial institutions even by giving one months notice. The only thing in that case would have been that the financial institutions would have obtained that strength not earlier that the end of June, 1979. What has happened by the waiver of the notice is that the financial institutions obtained the additional voting strength by 5th June, 1979. The question is as to whether this grant of additional voting strength in an accelerated manner by waiving notice is mala fide. This would be primarily a question of fact. What has happened in 1977 and 1978 would not be decisive though it may be remotely relevant. Wewill have to find out as to whether there was any immediate or urgent apprehension in the mind of the company and the financial institutions that the financial institutions ever thought that the financial institutions should require this additional voting strength in the meeting of 28th June, 1979. Was there anything suggest that the company or the financial institutions ever thought that they would be requiring additional voting strength of 43,750 shares None of the plaintiffs have entered the witness box to depose that he intended to raise certain objections or to put certaIn resolutions which would require voting. As a matter of fact nothing controversial took place in the said meeting. No resolution was moved on which there was any debate. There was thus no occasion for exercising voting power for or against any resolution. There is no evidence to suggest that the plaintiffs or any other shareholder had given prior indication to the company or the financial institutions that there was the possibility of any debatable issue being raised in the meeting. The plaint also does not allege anything in this respect. Thus, the evidence, as it stands in this respect. Thus, the evidence, as it stands in this case, does not prove that there was any immediate need to increase the voting strength of the financial for being utilised in the meeting of 28th June, 1979. In the absence of such evidence, it will be very difficult for the plaintiffs to contend that there were any mala fides simply because the notice was waived.89. The question of waiver of notice and its mala fides can also be viewed from another angle. There is no legal provision that the debenture trust deed or the debenture must contain a clause that for exercising an option for converting the debentures into shares, a notice of a particular period should be given by the debenture holder. Statute does not provide for any such notice. It is only the debenture trust deed and the debenture which has to make provision as to how the option should exercised and there is no legal bar if a provision is made that the option should be exercised by giving a simple notice without providing that the option should be exercised by giving a simple notice without providing that the said notice should be of a particular period. Notice of 1979 AGM was issued on 28th April, 1979. The draft of the debenture trust deed was prepared on 24th May, 1979. On that day, the parties were knowing that the next AGM was to be held on 28th June, 1979. The board of directors held the meeting on 24th May, 1979, and had passed a resolution authorising certain directors to finalise, settle and incorporate any modifications and changes in the draft debenture trust deed. The resolution also authorised the execution of the debenture trust deed with any such modifications or changes. There was nothing to prevent the board of directors to amend the draft by deleting the clause of one months notice. This is very important as on deletion of the clause (at the time of finalisation of the draft, there would not have been any question of waiving the notice and that too with a mala fide intention. The debenture trust deed was executed on 31st May, and the financial institutions have given notice of option on that very day. This shows that the financial institutions were keen on exercising the option as soon as possible. Plaintiffs allegation is that the financial institutions haveto exercise the option on 31st May, 1979 (that is, the date on which the debenture trust deed was executed). Mr. Nariman is right when he contends that in this background, it will be very difficult to hold that the parties to the transaction, namely, the company and the financial institutions, initially purposefully created a hurdle by providing one months notice and thereafter they got over that hurdle by maliciously waiving the notice. There would not have been any question of malice in waiving the notice if such a notice clause was not at all provided for. As discussed above, the provision for such one months notice as not compulsory and nothing prevented the parties to provide the exercise of option without such one months notice.90. In para. 29, we have already referred to theof Shri Nareshchandra Singhal and the statement (Ex.part II, p. 3232, onwards), which he has produced at the instance of the plaintiffs. That statement shows that there are a number of instances when the period of option was agreed to commence even before the advancement of loan. Similarly, there are instances where the option was exercisable at any time during the currency of the loan and not on or before a particular date. The loan to motor industries was advanced on 1st October 1973. The option was exercised and the shares were allotted on the very day, though 15 days notice was contemplated before exercising such an option. Mr. Nariman is right when he contends that this is another indication that there was anything irregular or mala fide in getting the shares immediately. We, therefore, hold that the allotment of shares is not at all vitiated as there were no mala fides when the notice was waived. Similarly, it will not be possible for the plaintiffs to contend that adverse inference should be drawn against the defendants because they have not examined any director of the company as a witness. We have already discussed in the earlier part of the judgement this contention of the plaintiffs in details. The net result, therefore, is that the plaintiffs fail on all the counts and the suit is liable to be dismissed.91. The defendants have also raised certain defences to the suit. These defences need not be considered as the suit is liable to be dismissed in view of the above findings. However, in order to make the judgement complete, we propose to discuss and decide them as they have been urged before us. It was urged on behalf of the defendants that the suit is not maintainable and would be bad for not joining the debenture trustee, namely, the Bank of Baroda, as a party. The said debenture trust has made a provision for the issue of debentures worth Rs. 350 lakh. It also contains a convertibility clause as discussed above. The plaintiffs case is that the conversion of 20 per cent. of the debentures is bad. On account of the conversion, the total value of debentures, was reduced to Rs. 280 lakh. The plaintiffs grievance is that the convertibility is bad and thus the debentures would continue to be of Rs. 350 lakh. Mr. Nariman, therefore, urged that in this background, the trustee, namely, the Bank of Baroda, is a necessary party. In our opinion, the debenture trustee has no concern with the dispute as to whether particular debentures have been properly converted into shares or not. The trustee is entitled to take certain steps if NRC fails to repay the debenture debt and the interest thereon. The trustee is not at all concerned as to who are the debenture holders. It is a matter solely between the company and the particular holder. The relief that certain debentures have been illegally or improperly converted into equity shares can be appropriately granted in the absence of the trustee as a party to this litigation. The question as to whether a particular party is necessary or not depends upon the facts of each case, namely, pleadings and the reliefsdo not think it necessary to make mention thereof, as we are satisfied that the learned single judge has rightly held that the trustee, namely, the Bank of Baroda, is not a necessary party to thissubmission will have to be rejected outright inasmuch as an act which is illegal from its inception, cannot become legal by applying the principle of estoppel, laches andcan be seen from the courts order dated 28th June, 1982, at p. 940 of theIn our opinion, the rejection of the minutes of the meeting dated March 27, 1980, was not proper, particularly when the plaintiffs themselves want to rely uponminutes show that the plaintiff No. 2 attended the meeting. In that meeting, the board of directors considered and discussed the annual accounts of the financial year ending 31st December, 1979. Similarly, theand profit and loss account for the year 1979 were approved by the board of directors. The directors report was also approved with certain changes. The said directors report as well as profit and loss account are at p. 207 onwards of vol. 8. On p. 220, there is a reference to the allotment of shares in the year 1979 to the financial institutions on account of conversion. Needless to say that this includes the allotment in dispute. The profit and loss account and more particularly the position of the share capital as mentioned therein show the increase of the share capital, and this increase pertains to the disputed allotment of shares to the financial institutions. There is also a note that the debentures were issued in the year with certain option as detailed in schedule III. From p. 235, it can be seen that there is a mention of the disputed debentures and of the debenture holders having exercised their rights and converted 20% into equity shares. There is not a serious dispute that in the AGM dated May 15, 1980, plaintiff No. 1 was present and that the above mentioned directors report and theIt would, therefore, be necessary to consider the facts of the case on the basis of the above position of law. We have already observed that plaintiff No. 2 as a director of the company was a party to the resolution showing or indicating that the disputed shares have been allotted to the financial institutions in a regular manner. The directors report as also theprepared by the board of directors is consistent with this position. Plaintiff No. 1 was present at the time of the AGM on May 15, 1980. The plaintiffs have alleged in the plaint mala fides in the waiver of notice. This means that before the filing of the suit, the plaintiffs had obtained the knowledge about the mala fide waiver. However, the plaint is silent as to when they received this knowledge. This omission has an importance. If the plaintiffs had such knowledge before the above mentioned meetings dated March 27, 1980, and May 15, 1980, they would not have acted in the manner mentioned above. On the contrary, they would have raised a grudge about the allotment of the shares. It is for this reason that the date on which they received the knowledge was relevant. Not only that there is no pleading in this respect but none of the plaintiffs have entered the witness box to depose as to when he came to know about the alleged mala fides. The question is as to on whom the burden of proving such knowledge need not detain us any longer in the background of plaintiffs omission to enter the witness box. The fact that the plaintiffs obtained the above mentioned information on a particular day would be within their exclusive knowledge and an adverse inference will have to be drawn against the plaintiffs, for not entering the witness box for deposing anything in this respect. Under these circumstances, it will not be open for the plaintiffs to contend that they had no knowledge or information about the alleged mala fides before March 27, 1980, and May 15, 1980. Their conduct on these two dates with previous knowledge would be a bar so as to prevent them from urging the alleged mala fides.111. There is another important factor which is to be borne in mind. The financial institutions were entitled to exercise option before June 14, 1980. Had the plaintiffs taken any action on the basis of the alleged mala fides prior to that date, the financial institutions would have been able to issue one months notice as contemplated by the debenture trust and on that basis they would have obtained the allotment of the shares. The position has now become precarious from the point of view of the financial institutions inasmuch as on the date on which the plaintiffs filed the suit the period for exercising option had already expired. Thus, granting any decree on the basis of the alleged mala fides would be prejudicial to the defendants. This is more so when the nature of the transaction was to be that of debentures with an option to convert 20 % thereof into equity shares. Thus, it would be unconscionable to allow the plaintiffs any relief on the basis of the alleged mala fides. We would, therefore, hold that the plaintiffs suit would be barred by equitable principles of acquiescence and ratification.112. Rectification of share register is contemplated by section 155 of the Companies Act. There cannot be any serious dispute, though Mr. Cooper does not accept this position, that rectification is a discretionaryprinciple, we do not find that there can be any difference simply because the plaintiffs have filed the suit. Before filing of the suit, the plaintiffs had made an application under Section 155 of the Companies Act. That application was withdrawn on the ground that the matter involved a complicated question. But this would (not ) alter the position in favour of the plaintiffs. Otherwise there would be an anomaly, i.e., the relief would be discretionary if an application is filed under Section 144; while the court would be bound to grant a rectification decision if the chooses to file a suit. In our opinion, rectification of share register, whether claimed in an application under Section 155 of the Act or in a substantive suit would be a discretionary relief. The present case does not appear to be a fit one for granting such an equitable relief particularly when we take into account the conduct of the plaintiffs as well as the precarious position to which the defendants would be reduced if the allotment of shares is cancelled. | 0 | 33,949 | 12,207 | ### Instruction:
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date on which the plaintiffs filed the suit the period for exercising option had already expired. Thus, granting any decree on the basis of the alleged mala fides would be prejudicial to the defendants. This is more so when the nature of the transaction was to be that of debentures with an option to convert 20 % thereof into equity shares. Thus, it would be unconscionable to allow the plaintiffs any relief on the basis of the alleged mala fides. We would, therefore, hold that the plaintiffs suit would be barred by equitable principles of acquiescence and ratification.112. Rectification of share register is contemplated by section 155 of the Companies Act. There cannot be any serious dispute, though Mr. Cooper does not accept this position, that rectification is a discretionary relief.113. This aspect is considered in the case of Bellerby v. Rowland & Marwood s Steamship Co. Ltd. [1901] 2 ch 265 (Ch D). In that case, the directors surrendered certain shares of theirs to the company. On account of that surrender the liability for the uncalled shares came to an end. Surrender was made so as to relieve the company of the losses. After some time the companys business became prosperous. The directors filed an application for rectification of the share register for reintroducing their names in the register. It was alleged that the transaction of surrender of shares was bad. The court found that the transaction was bad, however, rectification was refused by holding that the discretionary relief should not be granted. The relevant observations on p. 273 are as follows :"It does not follow that because the surrenders of shares were bad the plaintiffs are now entitled to succeed in their claim to be restored to the register In respect of them. The power of rectifying the register given by the 35th section of the Act of 1862 is discretionary in this sense-that the court properly can only exercise it if satisfied of the justice of the case, and on many applications the court has declined to exercise this power on the ground that it would not be fair to do so, or, to put it more technically, that the applicant has not established any equity to disturb the existing state of things. And, in considering this, the court has always had regard to the lapse of time, and to any facts and circumstances indicating acquiescence in the existing state of things by those on whose behalf the application is made to disturb it."114. The discretion can be exercised by passing orders which would be appropriate in a given set of circumstances. The case, In re Sussex Brick Co. Ltd. [1904 1 Ch.D. 598 (CA), is relevant in this respect. Certain shares were transferred on March 3, 1903, under the articles of association. The transferor is to be deemed to remain holder until the name of the transferee was entered in the register. On March 14, 1903, the transferee applied to the company for transfer of the shares. The share certificates were also sent to the company. On March 14, 1903, the company sent a reply acknowledging the receipt of the transfer application. The transferee was informed that new certificates would be ready by March 28, 1903, after placing the matter before the board of directors. However, in between, the Secretary resigned and another person was appointed in his place. He did not place the transfer application before the board. The transferee, therefore, wrote to the company asking for the transfer certificates. In the meantime, winding-up proceedings began. The transferee gave a notice of dissent regarding the resolution of winding up. The liquidator refused to take cognisance of the notice as the transfer was not registered. The transferee made an application for rectification of the register. The court granted rectification but from the date on which the order was passed. The contention of the transferee was that the rectification should have been made with effect from the date on which the shares ought to have been transferred. The transferee, therefore, took the matter in appeal. By applying the principle Nune pro time, the appeal was allowed. The court held that it should make an order that the registration should be treated as rectified from the time it ought to have been so rectified.115. Mr. Nariman urged that this case would show that at any rate the rectification of the register should have been ordered by directing that the entry dated 5th June, 1979, be deleted but at the same time there should be an entry in the share register dated June 30, 1979 (i.e. the day, a month after the notice), showing that the disputed shares have been transferred to the concerned financial institutions.116. Mr. Cooper urged that the present proceedings are not an application under Section 155 of the Act as the plaintiffs have field a substantive suit for the rectification of the register and consequential declaration. On principle, we do not find that there can be any difference simply because the plaintiffs have filed the suit. Before filing of the suit, the plaintiffs had made an application under Section 155 of the Companies Act. That application was withdrawn on the ground that the matter involved a complicated question. But this would (not ) alter the position in favour of the plaintiffs. Otherwise there would be an anomaly, i.e., the relief would be discretionary if an application is filed under Section 144; while the court would be bound to grant a rectification decision if the chooses to file a suit. In our opinion, rectification of share register, whether claimed in an application under Section 155 of the Act or in a substantive suit would be a discretionary relief. The present case does not appear to be a fit one for granting such an equitable relief particularly when we take into account the conduct of the plaintiffs as well as the precarious position to which the defendants would be reduced if the allotment of shares is cancelled.
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particularly when the plaintiffs themselves want to rely uponminutes show that the plaintiff No. 2 attended the meeting. In that meeting, the board of directors considered and discussed the annual accounts of the financial year ending 31st December, 1979. Similarly, theand profit and loss account for the year 1979 were approved by the board of directors. The directors report was also approved with certain changes. The said directors report as well as profit and loss account are at p. 207 onwards of vol. 8. On p. 220, there is a reference to the allotment of shares in the year 1979 to the financial institutions on account of conversion. Needless to say that this includes the allotment in dispute. The profit and loss account and more particularly the position of the share capital as mentioned therein show the increase of the share capital, and this increase pertains to the disputed allotment of shares to the financial institutions. There is also a note that the debentures were issued in the year with certain option as detailed in schedule III. From p. 235, it can be seen that there is a mention of the disputed debentures and of the debenture holders having exercised their rights and converted 20% into equity shares. There is not a serious dispute that in the AGM dated May 15, 1980, plaintiff No. 1 was present and that the above mentioned directors report and theIt would, therefore, be necessary to consider the facts of the case on the basis of the above position of law. We have already observed that plaintiff No. 2 as a director of the company was a party to the resolution showing or indicating that the disputed shares have been allotted to the financial institutions in a regular manner. The directors report as also theprepared by the board of directors is consistent with this position. Plaintiff No. 1 was present at the time of the AGM on May 15, 1980. The plaintiffs have alleged in the plaint mala fides in the waiver of notice. This means that before the filing of the suit, the plaintiffs had obtained the knowledge about the mala fide waiver. However, the plaint is silent as to when they received this knowledge. This omission has an importance. If the plaintiffs had such knowledge before the above mentioned meetings dated March 27, 1980, and May 15, 1980, they would not have acted in the manner mentioned above. On the contrary, they would have raised a grudge about the allotment of the shares. It is for this reason that the date on which they received the knowledge was relevant. Not only that there is no pleading in this respect but none of the plaintiffs have entered the witness box to depose as to when he came to know about the alleged mala fides. The question is as to on whom the burden of proving such knowledge need not detain us any longer in the background of plaintiffs omission to enter the witness box. The fact that the plaintiffs obtained the above mentioned information on a particular day would be within their exclusive knowledge and an adverse inference will have to be drawn against the plaintiffs, for not entering the witness box for deposing anything in this respect. Under these circumstances, it will not be open for the plaintiffs to contend that they had no knowledge or information about the alleged mala fides before March 27, 1980, and May 15, 1980. Their conduct on these two dates with previous knowledge would be a bar so as to prevent them from urging the alleged mala fides.111. There is another important factor which is to be borne in mind. The financial institutions were entitled to exercise option before June 14, 1980. Had the plaintiffs taken any action on the basis of the alleged mala fides prior to that date, the financial institutions would have been able to issue one months notice as contemplated by the debenture trust and on that basis they would have obtained the allotment of the shares. The position has now become precarious from the point of view of the financial institutions inasmuch as on the date on which the plaintiffs filed the suit the period for exercising option had already expired. Thus, granting any decree on the basis of the alleged mala fides would be prejudicial to the defendants. This is more so when the nature of the transaction was to be that of debentures with an option to convert 20 % thereof into equity shares. Thus, it would be unconscionable to allow the plaintiffs any relief on the basis of the alleged mala fides. We would, therefore, hold that the plaintiffs suit would be barred by equitable principles of acquiescence and ratification.112. Rectification of share register is contemplated by section 155 of the Companies Act. There cannot be any serious dispute, though Mr. Cooper does not accept this position, that rectification is a discretionaryprinciple, we do not find that there can be any difference simply because the plaintiffs have filed the suit. Before filing of the suit, the plaintiffs had made an application under Section 155 of the Companies Act. That application was withdrawn on the ground that the matter involved a complicated question. But this would (not ) alter the position in favour of the plaintiffs. Otherwise there would be an anomaly, i.e., the relief would be discretionary if an application is filed under Section 144; while the court would be bound to grant a rectification decision if the chooses to file a suit. In our opinion, rectification of share register, whether claimed in an application under Section 155 of the Act or in a substantive suit would be a discretionary relief. The present case does not appear to be a fit one for granting such an equitable relief particularly when we take into account the conduct of the plaintiffs as well as the precarious position to which the defendants would be reduced if the allotment of shares is cancelled.
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M/s. Chahal Engineering and Construction Company Vs. Irrigation Department, Punjab Sirsa | 31, 80, 663.00 which has been granted by the arbitrator on the basis that the Department had not denied the said amount which, as is shown above, is factually incorrect.Claim No. 4 34. As regards Claim No. 4, there does not appear to be any dispute if on the quantum of work executed, the rates as recommended by Shri Avtar Singh are awarded. 35. In addition to the errors apparent on record pointed out in respect of Claim No. 2 as above, we also notice further errors as follows : Escalation : 36. Clause 44 of the Agreement between the parties provided, among other things as follows : "The amounts paid to the Contractor for the work done shall be adjusted for increase or decrease in the rates of labour and material excepting these materials supplied by the Government as per Annexure II." * 37. The increase or decrease in the costs on account of labour and material was to be calculated in accordance with the formulae laid down in the Agreement. The price adjustment further was applicable only to the work carried out within the stipulated time or within the extensions granted which extentions were not on account of the contractors default and no claims for price adjustment other than those provided in the contract were to be entertained. As regards the increase or decrease in the rate of wages, it was the average consumer price index for industrial workers at the town nearest to the site of the work which was to be taken as the basis, the index being that released by the Labour Bureau of the Government of India and published in the Reserve Bank of India Bulletin. The price index for the material was to be obtained from the competent authority. In terms of this agreement, the escalation was to be given to the contractor as per the price indices both for labour and material prevailing during the quarters from July 1984 to March 1988, the contract having been terminated on 4th April of 1988. The arbitrator, however, committed a patent error by granting escalation based on the price index of December 1991. The respondents have produced the comparative price indices of both labour and material which show that the price indices for December 1991 - January 1992 were almost double those averaging during the period from July 1984 to March 1988. As the respondent have pointed out, this itself has made a difference of Rs. 49, 23, 263/-.Interest : 38. In addition to the escalation, the arbitrator has also awarded interest on the entire amount payable inclusive of the escalated amount and, as stated above, the wrongly calculated escalated amount. Although under the contract, the interest on the dues of the contractor is payable w.e.f. 1.4.1988 since the escalation is to be paid during the currency of the execution of the work, i.e., upto March 1988, the arbitrator has awarded both escalation and interest from 14.8.1987 to 31.3.1992. The interest payable on the amount of escalation calculated on the wrong indices itself runs into an amount of Rs. 35, 36, 129/- as shown by the respondent. 39. The arbitrator has also not taken into account the amount due from the contractor to the respondent as on 1.4.1988. The total amount of interest on that amount itself comes to Rs. 1, 84, 51, 665/-. Counter-claims and recoveries 40. We agree with the appellant that the arbitrator was supposed to take into consideration the entire work of the substructure of the aqueduct executed by them and hence the scope of reference of arbitration was not confined to the work which was completed when Shri Avtar Singh gave his award. It extended also to the work executed thereafter. The respondent-Government has not in its contention stated that the scope of the reference before the arbitrator did not include the work executed after Shri Avtar Singhs award. However, on account of the said extended scope of the reference, the arbitrator had also to take into consideration the counter-claims of the Department which arose out of the entire said work. Secondly, since the whole basis of the contract was changed, the consequences thereof having bearing on the original contract and all that was done on the said basis earlier, had also to be worked out for the benefit of the parties. It was, therefore, necessary to consider the claims of the respondent in particular with regard to the (i) wastage and pilferage of materials supplied by them to the contractor and (ii) advance of Rs. 24.40 lakhs made to the contractor towards the provisions for the construction of the hutment and setting up of a field office, since the contract was original a lump sum contract, and (iii) the fact that the new rates of contract were complete and inclusive of all expenses incurred on the items and no separate claim for such expenses was to be entertained. The arbitrator did not consider the said aspect. 41. The arbitrator has refused to entertain any counter-claim on the erroneous assumption that the counter-claim did not form part of the reference. The counter-claim of the respondents is itself of the amount of Rs. 7.94 crores. What is further, the arbitrator also disallowed the recovery statement submitted by the State Government which was to the tune of Rs. 1.91 crores which included a sum of Rs. 32, 38, 542.00 on account of wastage of material and Rs. 24.40 lakhs paid to the contractor for construction of field offices and colonies etc. as a part of the lump sum contract which was originally granted. Since the rates given in the CSR Volume II are inclusive of the expenses incurred by the contractor on account of the establishment of field offices and colonies etc. and since the lump sum basis of the contract, was later on changed to the item rate basis, the contractor was clearly not entitled to an additional sum of Rs. 24.40 lakhs. The arbitrator failed to notice this obvious fact. | 1[ds]We do not find any application filed by the appellant on record for making the award the rule of the court.Instead, we find that the arbitrator had filed the award in this court and a notice of the same was issued by the Registry of this court on 25th April, 1992 to the parties. The learned arbitrator had filed the award in this court in view of the decision of this court in Guru Nanak Foundation v. Rattan SinghSons 1982 (1) SCR 842 ), where a view has been taken that when an arbitrator is appointed by this court, the arbitrator has to file the award in this court to the exclusion of any other court and to that extent, the general law relating to the jurisdiction of this court is excepted. We also find that the opinion expressed by this court in the said decision has been referred for further consideration to a bench of five judges and the same is pending in this court at present. We have, therefore, to proceed on the basis of the law as it stands today which is binding on usSince as held below, we have come to the conclusion that the award suffers from several patent errors, it will have to be held that the objections raised by the respondent are within the scope of Section 30 of the Act. Since the proposition is obvious and is based upon the law settled by a series of decisions, it is not necessary to discuss the decisions here in detail. We, therefore, reject the preliminary contention17. The main point of controversy between the parties relates to the scope of the reference before the arbitrator. It is, therefore, necessary to understand both the background of the order dated 13th August, 1991 passed by this court referring the dispute to arbitration and the content of the same in the light of the said background. As has been explained earlier in detail, the contract given was ony lump sum basis. The designs and drawings of the work viz., construction of the aqueduct was to be supplied by ther with the tender itself. This design had to be approved by the respondent and could be modified by the respondent. Either the tenderer could accept such modification and proceed with the work or he could withdraw from the contract if the modification made necessitated an increase in the value of the contract. Admittedly, there was a change in the design of the contract but the appellant neither withdrew from the contract nor did it at the time of the change in the design, ask for a change in the total value of the contract. When the dispute arose while the work was still in progress, the matter was referred to Shri Avtar Singh. In his award he proceeded on the footing that the contract on the lump sum basis had come to an end and was replaced by a contract on the item rate basis. He then proceeded to prescribe rates to the various items as mentioned in the Common Schedule of Rates Volume II (P.W.D. Manual). Where the said Manual did not prescribe rates for the items, he gave his own rates. The respondent had challenged his award mainly on this ground and the High Court had also accepted the said challenge and set aside the award. It is against the order of the High Court quashing the award on the ground that Shri Avtar Singh had changed the very basis of the contract that the appellant had preferred the appeal before this court in which the court made the order of 13th August, 1991. We have, therefore, to understand the said order of reference in the context of this background of facts. The order of reference first states that although the contract was divisible into two broad heads, viz.,substructureand, the work relating to thee was not a matter of dispute to be referred to the arbitrator since the contract relating to the same had been terminated. However, the contractor had completed the work relating to the. It is the dues of contractor relating to the completed work of thesubstructurewhich alone was ther of dispute to be referred to the arbitrator. Secondly, the admitted position was that Shri Avtar Singh could not quantify the amount due in the award because, at that time the work of thesubstructurewas still in progress. Although, therefore, he had changed the basis of the contract from the lump sum to the item rate contract, the actual quantum of work doneandits qualitative evaluation could not be done by him. His award had, therefore, remained incomplete. He only prescribed the rates for the items as per the Manualandwhere no rates were prescribed for the items, he gave his own rates. Probably, he expected that the parties should work out the actual value of the work, after ascertaining the work doneandevaluating it in terms of the rates awarded by him. However, whether the work done was of the agreed quality or not, had also to be decided by the new arbitrator before he could quantify the rate of the itemsandthe total value of the work done. It is in this context that we have to read the crucial second last paragraph in the order beginning with the expression "In this background" which alone is material to find out the scope of the reference before the arbitrator. The order clearly says that it is in this background of factsandwith the consent of the parties that the court was directing that "there should be a fresh arbitration". This direction is followed by the statements, that "the arbitrator should take note of the fact that the matter had once been arbitrated uponandsome conclusions have been reached which were not seriously disputed by either side." The arbitrator, therefore, should "in this backdrop, after looking into the background" proceed "to complete the unfinished part of the award "by hearing parties to the extent "he in his discretion considers necessary". It does, therefore, appear from the aforesaid language of the order that while directing fresh arbitration, the arbitrator was also required to start where the earlier arbitrator Shri Avtar Singh had left. It is also to be noted that the order does not refer to the change of the basis of the contract viz., from the lump sum to the item rate contract, or to the High Courts comment uponit.Nor does it direct the new arbitrator to proceed on the lump sum basis of the contract. The absence of a reference to the change in the basis of the contract made by Shri Avtar Singhandthe statement that "the arbitrator should take note of the fact that the matter had once been arbitrated upon the some conclusions have been reached which were not seriously disputed by either side" coupled with a direction to the new arbitrator to complete the "unfinished part" of the awardandthat too by hearing parties to the extent "he in his discretion considered necessary" would suggest that the new arbitrator had to proceed on the footing that the lump sum basis of the contract no longer survivedandthe items of work had to be evaluated according to the rates either prescribed by the Manual or such rates that the arbitrator chose to grant. It cannot also be disputed that the arbitrator while evaluating the work had also to examine the evidence with regard to the quality of the work done. No fault, therefore, could be found with the arbitrator if he had proceeded to evaluate the work accordingly. We cannot therefore, accept the contention on behalf of the respondent that the arbitrator had to proceed on the original lump sum basis of the contractandnot on the30. The statement shows that what was agreed to was Rs. 47, 46, 863.40 which was included in item 4 which mentions a total sum of Rs. 59, 94,. This is an omnibus item inclusive of the payments against sinking through the rocksandthe boulders. Thus, the arbitrators award of Rs. 31, 80, 663/on the basis that the Department had not denied the quantities is prima facie wrong. The arbitrator has also granted not only the said amount of Rs. 31, 80, 663/but in addition, Rs. 9, 88, 749/andRs. 28, 32, 916/for escalationandinterest respectively; against the said amount31. What is further necessary to note with regard to the aforesaid amount of Rs. 31, 80, 663/is that the Government was disputing the said amount on two grounds, viz., the measure of the depth to be bored through rocksandboulders,andthe rate at which the cost of boring the same was to be calculated. The Government had calculated the depth on the basis of thee data which was earlier accepted to be correct, (Annexed to the supplementary affidavit of respondent is thee chart). Thate data showed that the total depth of rock to be bored for all the wells was not more than 10 mtrs. However, the contractor produced what he called the sinking register showing depth to be bored as 27.85 mtrs. The arbitrator allowed the quantities on the basis of the depth claimed by the contractor although the sinking register was held to be unproved by him in the proceedings of 5th February, 1992. The relevant observations of the arbitrator on that date are as follows :"The Register filed by Sh. Chopra along with his application for additional evidence on 9.1.1992 remains unprovedandits authenticity is denied by Shri Sohal. Shri Chopra says that he will not lead any evidence to prove the register which is therefore, not admitted in evidenceandis being returned to him. He has concluded his argument." *32. In spite of this, the arbitrator took the said depth of 27.85 mtrs. as the correct oneandawarded the total cost of boring on the said basis33. What is more, the rate, viz. Rs. 322.65 as claimed by the contractor was also disputed by the Government which contended that it is not more than Rs.. It is not disputed that the rate for boring through rock is five times more than the rate for boring through the boulder. The costs of boring through rockandthrough the boulder have to be calculated separately on the basis of the depth to which they were so bored. It is wrong to take the average of both the rates for calculating the cost of boring the two. The Company took, the average of both the rates given in CSRd thatrate is Rs. 47.80andapplied the premium of 575%. Even with the said average rateandthe said premium, the rate comes to Rs. 274.85. It is, therefore, difficult tohow the rate of Rs. 322.65 was at all arrived at. According to the Government, the rate is not more than Rs. 292/as stated above. Even if we discard the rate of Rs. 274.85 which will be the correct calculation on the basis of the Companys rate the difference would come to Rs. 7, 53, 032.00. Further, the difference on account of the increase in the depth of the rock to be bored as shown by the Company is Rs. 24, 27, 631.00. Thus together, the difference comes to Rs. 31, 80, 663.00 which has been granted by the arbitrator on the basis that the Department had not denied the said amount which, as is shown above, is factually incorrect.Claim No. 434. As regards Claim No. 4, there does not appear to be any dispute if on the quantum of work executed, the rates as recommended by Shri Avtar Singh are awarded35. In addition to the errors apparent on record pointed out in respect of Claim No. 2 as above, we also notice further errors as follows :36. Clause 44 of the Agreement between the parties provided, among other things as follows :"The amounts paid to the Contractor for the work done shall be adjusted for increase or decrease in the rates of labourandmaterial excepting these materials supplied by the Government as per Annexure II." *37. The increase or decrease in the costs on account of labourandmaterial was to be calculated in accordance with the formulae laid down in the Agreement. The price adjustment further was applicable only to the work carried out within the stipulated time or within the extensions granted which extentions were not on account of the contractors defaultandno claims for price adjustment other than those provided in the contract were to be entertained. As regards the increase or decrease in the rate of wages, it was the average consumer price index for industrial workers at the town nearest to the site of the work which was to be taken as the basis, the index being that released by the Labour Bureau of the Government of Indiaandpublished in the Reserve Bank of India Bulletin. The price index for the material was to be obtained from the competent authority. In terms of this agreement, the escalation was to be given to the contractor as per the price indices both for labourandmaterial prevailing during the quarters from July 1984 to March 1988, the contract having been terminated on 4th April of 1988. The arbitrator, however, committed a patent error by granting escalation based on the price index of December 1991. The respondents have produced the comparative price indices of both labourandmaterial which show that the price indices for December 1991January 1992 were almost double those averaging during the period from July 1984 to March 1988. As the respondent have pointed out, this itself has made a difference of Rs. 49, 23,38. In addition to the escalation, the arbitrator has also awarded interest on the entire amount payable inclusive of the escalated amount, as stated above, the wrongly calculated escalated amount. Although under the contract, the interest on the dues of the contractor is payable w.e.f. 1.4.1988 since the escalation is to be paid during the currency of the execution of the work, i.e., upto March 1988, the arbitrator has awarded both escalation | 1 | 8,502 | 2,569 | ### 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:
31, 80, 663.00 which has been granted by the arbitrator on the basis that the Department had not denied the said amount which, as is shown above, is factually incorrect.Claim No. 4 34. As regards Claim No. 4, there does not appear to be any dispute if on the quantum of work executed, the rates as recommended by Shri Avtar Singh are awarded. 35. In addition to the errors apparent on record pointed out in respect of Claim No. 2 as above, we also notice further errors as follows : Escalation : 36. Clause 44 of the Agreement between the parties provided, among other things as follows : "The amounts paid to the Contractor for the work done shall be adjusted for increase or decrease in the rates of labour and material excepting these materials supplied by the Government as per Annexure II." * 37. The increase or decrease in the costs on account of labour and material was to be calculated in accordance with the formulae laid down in the Agreement. The price adjustment further was applicable only to the work carried out within the stipulated time or within the extensions granted which extentions were not on account of the contractors default and no claims for price adjustment other than those provided in the contract were to be entertained. As regards the increase or decrease in the rate of wages, it was the average consumer price index for industrial workers at the town nearest to the site of the work which was to be taken as the basis, the index being that released by the Labour Bureau of the Government of India and published in the Reserve Bank of India Bulletin. The price index for the material was to be obtained from the competent authority. In terms of this agreement, the escalation was to be given to the contractor as per the price indices both for labour and material prevailing during the quarters from July 1984 to March 1988, the contract having been terminated on 4th April of 1988. The arbitrator, however, committed a patent error by granting escalation based on the price index of December 1991. The respondents have produced the comparative price indices of both labour and material which show that the price indices for December 1991 - January 1992 were almost double those averaging during the period from July 1984 to March 1988. As the respondent have pointed out, this itself has made a difference of Rs. 49, 23, 263/-.Interest : 38. In addition to the escalation, the arbitrator has also awarded interest on the entire amount payable inclusive of the escalated amount and, as stated above, the wrongly calculated escalated amount. Although under the contract, the interest on the dues of the contractor is payable w.e.f. 1.4.1988 since the escalation is to be paid during the currency of the execution of the work, i.e., upto March 1988, the arbitrator has awarded both escalation and interest from 14.8.1987 to 31.3.1992. The interest payable on the amount of escalation calculated on the wrong indices itself runs into an amount of Rs. 35, 36, 129/- as shown by the respondent. 39. The arbitrator has also not taken into account the amount due from the contractor to the respondent as on 1.4.1988. The total amount of interest on that amount itself comes to Rs. 1, 84, 51, 665/-. Counter-claims and recoveries 40. We agree with the appellant that the arbitrator was supposed to take into consideration the entire work of the substructure of the aqueduct executed by them and hence the scope of reference of arbitration was not confined to the work which was completed when Shri Avtar Singh gave his award. It extended also to the work executed thereafter. The respondent-Government has not in its contention stated that the scope of the reference before the arbitrator did not include the work executed after Shri Avtar Singhs award. However, on account of the said extended scope of the reference, the arbitrator had also to take into consideration the counter-claims of the Department which arose out of the entire said work. Secondly, since the whole basis of the contract was changed, the consequences thereof having bearing on the original contract and all that was done on the said basis earlier, had also to be worked out for the benefit of the parties. It was, therefore, necessary to consider the claims of the respondent in particular with regard to the (i) wastage and pilferage of materials supplied by them to the contractor and (ii) advance of Rs. 24.40 lakhs made to the contractor towards the provisions for the construction of the hutment and setting up of a field office, since the contract was original a lump sum contract, and (iii) the fact that the new rates of contract were complete and inclusive of all expenses incurred on the items and no separate claim for such expenses was to be entertained. The arbitrator did not consider the said aspect. 41. The arbitrator has refused to entertain any counter-claim on the erroneous assumption that the counter-claim did not form part of the reference. The counter-claim of the respondents is itself of the amount of Rs. 7.94 crores. What is further, the arbitrator also disallowed the recovery statement submitted by the State Government which was to the tune of Rs. 1.91 crores which included a sum of Rs. 32, 38, 542.00 on account of wastage of material and Rs. 24.40 lakhs paid to the contractor for construction of field offices and colonies etc. as a part of the lump sum contract which was originally granted. Since the rates given in the CSR Volume II are inclusive of the expenses incurred by the contractor on account of the establishment of field offices and colonies etc. and since the lump sum basis of the contract, was later on changed to the item rate basis, the contractor was clearly not entitled to an additional sum of Rs. 24.40 lakhs. The arbitrator failed to notice this obvious fact.
### Response:
1
### Explanation:
This is an omnibus item inclusive of the payments against sinking through the rocksandthe boulders. Thus, the arbitrators award of Rs. 31, 80, 663/on the basis that the Department had not denied the quantities is prima facie wrong. The arbitrator has also granted not only the said amount of Rs. 31, 80, 663/but in addition, Rs. 9, 88, 749/andRs. 28, 32, 916/for escalationandinterest respectively; against the said amount31. What is further necessary to note with regard to the aforesaid amount of Rs. 31, 80, 663/is that the Government was disputing the said amount on two grounds, viz., the measure of the depth to be bored through rocksandboulders,andthe rate at which the cost of boring the same was to be calculated. The Government had calculated the depth on the basis of thee data which was earlier accepted to be correct, (Annexed to the supplementary affidavit of respondent is thee chart). Thate data showed that the total depth of rock to be bored for all the wells was not more than 10 mtrs. However, the contractor produced what he called the sinking register showing depth to be bored as 27.85 mtrs. The arbitrator allowed the quantities on the basis of the depth claimed by the contractor although the sinking register was held to be unproved by him in the proceedings of 5th February, 1992. The relevant observations of the arbitrator on that date are as follows :"The Register filed by Sh. Chopra along with his application for additional evidence on 9.1.1992 remains unprovedandits authenticity is denied by Shri Sohal. Shri Chopra says that he will not lead any evidence to prove the register which is therefore, not admitted in evidenceandis being returned to him. He has concluded his argument." *32. In spite of this, the arbitrator took the said depth of 27.85 mtrs. as the correct oneandawarded the total cost of boring on the said basis33. What is more, the rate, viz. Rs. 322.65 as claimed by the contractor was also disputed by the Government which contended that it is not more than Rs.. It is not disputed that the rate for boring through rock is five times more than the rate for boring through the boulder. The costs of boring through rockandthrough the boulder have to be calculated separately on the basis of the depth to which they were so bored. It is wrong to take the average of both the rates for calculating the cost of boring the two. The Company took, the average of both the rates given in CSRd thatrate is Rs. 47.80andapplied the premium of 575%. Even with the said average rateandthe said premium, the rate comes to Rs. 274.85. It is, therefore, difficult tohow the rate of Rs. 322.65 was at all arrived at. According to the Government, the rate is not more than Rs. 292/as stated above. Even if we discard the rate of Rs. 274.85 which will be the correct calculation on the basis of the Companys rate the difference would come to Rs. 7, 53, 032.00. Further, the difference on account of the increase in the depth of the rock to be bored as shown by the Company is Rs. 24, 27, 631.00. Thus together, the difference comes to Rs. 31, 80, 663.00 which has been granted by the arbitrator on the basis that the Department had not denied the said amount which, as is shown above, is factually incorrect.Claim No. 434. As regards Claim No. 4, there does not appear to be any dispute if on the quantum of work executed, the rates as recommended by Shri Avtar Singh are awarded35. In addition to the errors apparent on record pointed out in respect of Claim No. 2 as above, we also notice further errors as follows :36. Clause 44 of the Agreement between the parties provided, among other things as follows :"The amounts paid to the Contractor for the work done shall be adjusted for increase or decrease in the rates of labourandmaterial excepting these materials supplied by the Government as per Annexure II." *37. The increase or decrease in the costs on account of labourandmaterial was to be calculated in accordance with the formulae laid down in the Agreement. The price adjustment further was applicable only to the work carried out within the stipulated time or within the extensions granted which extentions were not on account of the contractors defaultandno claims for price adjustment other than those provided in the contract were to be entertained. As regards the increase or decrease in the rate of wages, it was the average consumer price index for industrial workers at the town nearest to the site of the work which was to be taken as the basis, the index being that released by the Labour Bureau of the Government of Indiaandpublished in the Reserve Bank of India Bulletin. The price index for the material was to be obtained from the competent authority. In terms of this agreement, the escalation was to be given to the contractor as per the price indices both for labourandmaterial prevailing during the quarters from July 1984 to March 1988, the contract having been terminated on 4th April of 1988. The arbitrator, however, committed a patent error by granting escalation based on the price index of December 1991. The respondents have produced the comparative price indices of both labourandmaterial which show that the price indices for December 1991January 1992 were almost double those averaging during the period from July 1984 to March 1988. As the respondent have pointed out, this itself has made a difference of Rs. 49, 23,38. In addition to the escalation, the arbitrator has also awarded interest on the entire amount payable inclusive of the escalated amount, as stated above, the wrongly calculated escalated amount. Although under the contract, the interest on the dues of the contractor is payable w.e.f. 1.4.1988 since the escalation is to be paid during the currency of the execution of the work, i.e., upto March 1988, the arbitrator has awarded both escalation
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The Employers Of Azam Jahi Mills Ltd Vs. The Workmen | not incurred fresh loans for the purpose of buying plant and machinery, we can proceed on the basis that Rs. 14,49,664 and Rs. 1 lakh have come out of the working capital. Consequently, the reserves used as working capital should be approximately Rs. 24,83,000 as shown by the company less Rs. 15,49,664 i.e. Rs. 8,34,000 and the return thereon at 2 per cent would be approximate1y Rs. 16.000 in place of Rs. 49,678. Further, we find that the Tribunal was not right in including Rs. 1,07,992 as gratuity and retrenchment compensation among its list of prior charges.8. On the basis of the above, it seems to us that deducting the prior charges from the gross profits irrespective of the question of the amount to be deducted for rehabilitation modernisation etc. comes to the figure arrived at is Rs. 80.000 or thereabouts only.9. There was a good deal of controversy between the parties with regard to the correct amount of the figure for rehabilitation. In this connection, our attention was drawn to the evidence on record. The Chief Engineer of the Company stated before the Tribunal that the machinery had been purchased in 1932, that its condition was bad due to figure and that it was costing more and more every year for repairs even up to Rs. 21/2 lakhs. According to him, it required replacement, the average life of a textile mill being no more than 25 years. The witness also said that one half of the entire machinery had been purchased and installed between 1948 and 1952 and the cost in 1952 was five times that of the 1932 figure. The other witness examined or behalf of the employers was the secretary of the mill. He stated that the provision for rehabilitation was Rs. 93,30,000, the working capital being Rs. 24,83,904. He gave certain figures to show how the figure of Rs. 93,30,00 was arrived at. He stated further that the company had approached the Government for a loan of Rs. 56 lakhs for replacement of the spinning machinery and part of the weaving machines. The applications for loan is not in dispute before us. As a matter of fact, the Tribunal accepted the evidence that the age of textile mill machinery was about 25 years and more than half the machinery had passed that age. This justified the need for rehabilitation. The Tribunal referred to a letter of the company to the Government dated October 10, 1963 according to which several experts had opined that the amount required for replacement of the old machinery was Rs. 56 lakhs. The Tribunal added thereto the sum of Rs. 2 lakes for replacement of the buildings and thus arrived the total figure of rehabilitation of Rs. 58 lakhs. In our opinion the figures arrived at by the Tribunal are acceptable but we have to deduct therefrom the amount of the reserves of the company. According to us, as already shown, the reserves which could be used as working capital were no more shall Rs. 8,34,000. Thus the total for rehabilitation comes to Rs. 50 lakhs approximately. The Tribunal accepted the divisor 5 to give effect to the bonus formula on the basis that the cost of rehabilitation should be spread over five years. In our opinion, the Tribunal proceeded on the right basis except on the figure of reserves which has to be deducted. Dividing Rs. 50 lakhs by five, we get a figure of Rs. 10 lakhs. In terms of the bonus formula therefore, there was no available surplus for the year l960-61 but there was a deficit.10. We were not impressed by the argument on behalf of the respondents that as no experts were examined before the Tribunal there was no basis for calculation of the provision for rehabilitation. In this connection, our attention was drawn to a judgment of this Court in M/s. Peirce Leslie and Co. Ltd. Kozhikode v. Their Workmen 1960-3 SCR194 : (AIR 1960 SC 826 ). It appears that in support of its claim in that case the company produced a number of statements prepared by witness who claimed to be experts showing the replacements value of buildings, machinery, furniture etc. We were also referred to the judgment of this Court in Aluminium Corporation of India, Ltd. v. Their Workmen, 1963-2 Lab LJ 629 (SC). On the facts of that case, it was observed by this Court that as there was no evidence adduced by the employer to substantiate its claim for the amount of rehabilitation, the same must be rejected. In our view, the Tribunal must consider all the evidence before it and then proceed to ascertain the figure to be adopted for rehabilitation purposes. If the company had no scheme for rehabilitation, then of course its claim on that head must be rejected. Again, the claim made by the company cannot be accepted unless substantiated by evidence. In this case, we find that half the machinery was over Rs. 2 lakhs every year for repairs according to the evidence of the Chief Engineer and that its efficiency had dwindled considerably. We also see no reason to reject the evidence adduced before the Tribunal that the company had applied for a loan of Rs. 56 lakhs from the Government for rehabilitation purpose and we accordingly are of the view that the Tribunal proceeded on the correct basis so far as rehabilitation charges are concerned.11. There remains the point about the working capital of the company. No case is here made that the reserves of the company were being used for any purpose other than the business of the company. The accounts of the company show that its secured liability exceeded Rs. 1,16,00,000 and its unsecured loans exceed Rs. 28,00,000. Unless, therefore, there is evidence to show that the reserves were no-existent or they were being utilised for a purpose other than the business of the company, it is reasonable to assume that the reserves were being utilised as working capital of the company. | 1[ds]There is no dispute that the net profit as disclosed by the balance sheet for the year 1960-61 was Rs. 9,03,378. The only difference between the management and the Tribunal with regard to the calculation of gross profits relates to the figures Rs. 5,39,963 for gratuity and retrenchment compensation paid by the company during the year infinding of the Tribunal is erroneous inasmuch as gratuity will have to be paid year after year to workmen who retire or leave the companys services in terms of the scheme of gratuity and retrenchment compensation may have to be paid in any year if there be modernisation of the plant, or for any other reason which renders any workmen superfluous. It seems to us therefore, that the gross profits as calculated by the employers at Rs. 19,05,496 is the correct figure.5. Coming next to the ascertainment of prior charges, the material discrepancy between the figures adopted by the company and those by the Tribunal arises thus - we find that the national normal, depreciation has been taken to be Rs. 6,44,351 in both sets of charts but the Tribunal has deducted therefrom a sum of Rs. 1,50,000 in respect of idle machinery. We are unable to accept this view of the Tribunal. It is well settled that depreciation allowed under of Income-tax Act after 1948 was to consist of the statutory normal depreciation as well as initial depreciation and additional depreciation.We find by referring to Schedule E of the accounts of the Company for the year 1960-61 that depreciation for the year was calculated at Rs. 16,03,149. This is also referred to in the Directors Report. Deducting there form the sum of Rs. 9,58,789 which is referred to in the profit and loss account for the year 30th September 1961 as balance provision for depreciation to comply with S. 205 of the Companies Act 1956, we get the figure of Rs. 6,44,351. Which is to be found in the chart both under the table of figures adopted by the management as also by the Tribunal. The figure being a notional figure for working out the bonus formula, the Tribunal was not justified in deducting therefrom a further sum of Rs. 1,50,000 in respect of machinery which was said to be idle.7. In terms of the agreement between the parties, the prior charges must include the development rebate as well unless the statutory depreciation and development rebate add up to a higher figure than the figure for reserve and rehabilitation. It therefore appears to us that the Tribunal was not justified in excluding the amount of the development rebate reserve. There is no dispute that the figure for income-tax should be Rs. 4,74,020 or that for the return on paid-up capital should be Rs. 4,32,000 The workmen in their chart have calculated the return at 4 per cent on Rs 72 lakhs which is not justified. Both the Tribunal and the company calculated return on reserves used as working capital at Rs. 49,678 This, in our view, is not justified as we find from a reference to schedule E., (fixed assets of the company for the year 1960-61) that a sum of Rs. 14,49,664 was spent for addition of new plant and machinery. On a reference to schedule A, B, C and D for the year in question and the corresponding figure for the previous year, we find that the figure of reserves and surplus in schedule A has gone down by Rs. 1,00,000. The figure for secured loans in schedule C remains the same while the current liabilities as shown in schedule D has gone up by Rs 3,50,000 in the year in question as compared to the previous year and loans secured from banks show a reduction of Rs. 13,22,000. Thus the liability in respect of the loans have been reduced approximately by Rs. 10 lakhs. Setting off the diminution, the overall liability was diminished by 9 lakhs. We also find from a reference to Schedule F. G. H. and I (of investments, current assets and loans by the company) that the total thereof has gone down by Rs. 8 lakhs from the figure of the previous year. The net result seems to be that reduction of liability when set off against the reduction in the value of the assets and investments gives a deficit of Rs. 1.00,000 approximately. As the company has not incurred fresh loans for the purpose of buying plant and machinery, we can proceed on the basis that Rs. 14,49,664 and Rs. 1 lakh have come out of the working capital. Consequently, the reserves used as working capital should be approximately Rs. 24,83,000 as shown by the company less Rs. 15,49,664 i.e. Rs. 8,34,000 and the return thereon at 2 per cent would be approximate1y Rs. 16.000 in place of Rs. 49,678. Further, we find that the Tribunal was not right in including Rs. 1,07,992 as gratuity and retrenchment compensation among its list of prior charges.8. On the basis of the above, it seems to us that deducting the prior charges from the gross profits irrespective of the question of the amount to be deducted for rehabilitation modernisation etc. comes to the figure arrived at is Rs. 80.000 or thereabouts only.In our opinion the figures arrived at by the Tribunal are acceptable but we have to deduct therefrom the amount of the reserves of the company. According to us, as already shown, the reserves which could be used as working capital were no more shall Rs. 8,34,000. Thus the total for rehabilitation comes to Rs. 50 lakhs approximately. The Tribunal accepted the divisor 5 to give effect to the bonus formula on the basis that the cost of rehabilitation should be spread over five years. In our opinion, the Tribunal proceeded on the right basis except on the figure of reserves which has to be deducted. Dividing Rs. 50 lakhs by five, we get a figure of Rs. 10 lakhs. In terms of the bonus formula therefore, there was no available surplus for the year l960-61 but there was a deficit.10. We were not impressed by theargument on behalf of the respondents that as no experts were examined before the Tribunal there was no basis for calculation of the provision forIt appears that in support of its claim in that case the company produced a number of statements prepared by witness who claimed to be experts showing the replacements value of buildings, machinery, furniturethis case, we find that half the machinery was over Rs. 2 lakhs every year for repairs according to the evidence of the Chief Engineer and that its efficiency had dwindled considerably. We also see no reason to reject the evidence adduced before the Tribunal that the company had applied for a loan of Rs. 56 lakhs from the Government for rehabilitation purpose and we accordingly are of the view that the Tribunal proceeded on the correct basis so far as rehabilitation charges are concerned.11. There remains the point about the working capital of the company. No case is here made that the reserves of the company were being used for any purpose other than the business of the company. The accounts of the company show that its secured liability exceeded Rs. 1,16,00,000 and its unsecured loans exceed Rs. 28,00,000. Unless, therefore, there is evidence to show that the reserves were no-existent or they were being utilised for a purpose other than the business of the company, it is reasonable to assume that the reserves were being utilised as working capital of the company. | 1 | 3,116 | 1,370 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
not incurred fresh loans for the purpose of buying plant and machinery, we can proceed on the basis that Rs. 14,49,664 and Rs. 1 lakh have come out of the working capital. Consequently, the reserves used as working capital should be approximately Rs. 24,83,000 as shown by the company less Rs. 15,49,664 i.e. Rs. 8,34,000 and the return thereon at 2 per cent would be approximate1y Rs. 16.000 in place of Rs. 49,678. Further, we find that the Tribunal was not right in including Rs. 1,07,992 as gratuity and retrenchment compensation among its list of prior charges.8. On the basis of the above, it seems to us that deducting the prior charges from the gross profits irrespective of the question of the amount to be deducted for rehabilitation modernisation etc. comes to the figure arrived at is Rs. 80.000 or thereabouts only.9. There was a good deal of controversy between the parties with regard to the correct amount of the figure for rehabilitation. In this connection, our attention was drawn to the evidence on record. The Chief Engineer of the Company stated before the Tribunal that the machinery had been purchased in 1932, that its condition was bad due to figure and that it was costing more and more every year for repairs even up to Rs. 21/2 lakhs. According to him, it required replacement, the average life of a textile mill being no more than 25 years. The witness also said that one half of the entire machinery had been purchased and installed between 1948 and 1952 and the cost in 1952 was five times that of the 1932 figure. The other witness examined or behalf of the employers was the secretary of the mill. He stated that the provision for rehabilitation was Rs. 93,30,000, the working capital being Rs. 24,83,904. He gave certain figures to show how the figure of Rs. 93,30,00 was arrived at. He stated further that the company had approached the Government for a loan of Rs. 56 lakhs for replacement of the spinning machinery and part of the weaving machines. The applications for loan is not in dispute before us. As a matter of fact, the Tribunal accepted the evidence that the age of textile mill machinery was about 25 years and more than half the machinery had passed that age. This justified the need for rehabilitation. The Tribunal referred to a letter of the company to the Government dated October 10, 1963 according to which several experts had opined that the amount required for replacement of the old machinery was Rs. 56 lakhs. The Tribunal added thereto the sum of Rs. 2 lakes for replacement of the buildings and thus arrived the total figure of rehabilitation of Rs. 58 lakhs. In our opinion the figures arrived at by the Tribunal are acceptable but we have to deduct therefrom the amount of the reserves of the company. According to us, as already shown, the reserves which could be used as working capital were no more shall Rs. 8,34,000. Thus the total for rehabilitation comes to Rs. 50 lakhs approximately. The Tribunal accepted the divisor 5 to give effect to the bonus formula on the basis that the cost of rehabilitation should be spread over five years. In our opinion, the Tribunal proceeded on the right basis except on the figure of reserves which has to be deducted. Dividing Rs. 50 lakhs by five, we get a figure of Rs. 10 lakhs. In terms of the bonus formula therefore, there was no available surplus for the year l960-61 but there was a deficit.10. We were not impressed by the argument on behalf of the respondents that as no experts were examined before the Tribunal there was no basis for calculation of the provision for rehabilitation. In this connection, our attention was drawn to a judgment of this Court in M/s. Peirce Leslie and Co. Ltd. Kozhikode v. Their Workmen 1960-3 SCR194 : (AIR 1960 SC 826 ). It appears that in support of its claim in that case the company produced a number of statements prepared by witness who claimed to be experts showing the replacements value of buildings, machinery, furniture etc. We were also referred to the judgment of this Court in Aluminium Corporation of India, Ltd. v. Their Workmen, 1963-2 Lab LJ 629 (SC). On the facts of that case, it was observed by this Court that as there was no evidence adduced by the employer to substantiate its claim for the amount of rehabilitation, the same must be rejected. In our view, the Tribunal must consider all the evidence before it and then proceed to ascertain the figure to be adopted for rehabilitation purposes. If the company had no scheme for rehabilitation, then of course its claim on that head must be rejected. Again, the claim made by the company cannot be accepted unless substantiated by evidence. In this case, we find that half the machinery was over Rs. 2 lakhs every year for repairs according to the evidence of the Chief Engineer and that its efficiency had dwindled considerably. We also see no reason to reject the evidence adduced before the Tribunal that the company had applied for a loan of Rs. 56 lakhs from the Government for rehabilitation purpose and we accordingly are of the view that the Tribunal proceeded on the correct basis so far as rehabilitation charges are concerned.11. There remains the point about the working capital of the company. No case is here made that the reserves of the company were being used for any purpose other than the business of the company. The accounts of the company show that its secured liability exceeded Rs. 1,16,00,000 and its unsecured loans exceed Rs. 28,00,000. Unless, therefore, there is evidence to show that the reserves were no-existent or they were being utilised for a purpose other than the business of the company, it is reasonable to assume that the reserves were being utilised as working capital of the company.
### Response:
1
### Explanation:
was calculated at Rs. 16,03,149. This is also referred to in the Directors Report. Deducting there form the sum of Rs. 9,58,789 which is referred to in the profit and loss account for the year 30th September 1961 as balance provision for depreciation to comply with S. 205 of the Companies Act 1956, we get the figure of Rs. 6,44,351. Which is to be found in the chart both under the table of figures adopted by the management as also by the Tribunal. The figure being a notional figure for working out the bonus formula, the Tribunal was not justified in deducting therefrom a further sum of Rs. 1,50,000 in respect of machinery which was said to be idle.7. In terms of the agreement between the parties, the prior charges must include the development rebate as well unless the statutory depreciation and development rebate add up to a higher figure than the figure for reserve and rehabilitation. It therefore appears to us that the Tribunal was not justified in excluding the amount of the development rebate reserve. There is no dispute that the figure for income-tax should be Rs. 4,74,020 or that for the return on paid-up capital should be Rs. 4,32,000 The workmen in their chart have calculated the return at 4 per cent on Rs 72 lakhs which is not justified. Both the Tribunal and the company calculated return on reserves used as working capital at Rs. 49,678 This, in our view, is not justified as we find from a reference to schedule E., (fixed assets of the company for the year 1960-61) that a sum of Rs. 14,49,664 was spent for addition of new plant and machinery. On a reference to schedule A, B, C and D for the year in question and the corresponding figure for the previous year, we find that the figure of reserves and surplus in schedule A has gone down by Rs. 1,00,000. The figure for secured loans in schedule C remains the same while the current liabilities as shown in schedule D has gone up by Rs 3,50,000 in the year in question as compared to the previous year and loans secured from banks show a reduction of Rs. 13,22,000. Thus the liability in respect of the loans have been reduced approximately by Rs. 10 lakhs. Setting off the diminution, the overall liability was diminished by 9 lakhs. We also find from a reference to Schedule F. G. H. and I (of investments, current assets and loans by the company) that the total thereof has gone down by Rs. 8 lakhs from the figure of the previous year. The net result seems to be that reduction of liability when set off against the reduction in the value of the assets and investments gives a deficit of Rs. 1.00,000 approximately. As the company has not incurred fresh loans for the purpose of buying plant and machinery, we can proceed on the basis that Rs. 14,49,664 and Rs. 1 lakh have come out of the working capital. Consequently, the reserves used as working capital should be approximately Rs. 24,83,000 as shown by the company less Rs. 15,49,664 i.e. Rs. 8,34,000 and the return thereon at 2 per cent would be approximate1y Rs. 16.000 in place of Rs. 49,678. Further, we find that the Tribunal was not right in including Rs. 1,07,992 as gratuity and retrenchment compensation among its list of prior charges.8. On the basis of the above, it seems to us that deducting the prior charges from the gross profits irrespective of the question of the amount to be deducted for rehabilitation modernisation etc. comes to the figure arrived at is Rs. 80.000 or thereabouts only.In our opinion the figures arrived at by the Tribunal are acceptable but we have to deduct therefrom the amount of the reserves of the company. According to us, as already shown, the reserves which could be used as working capital were no more shall Rs. 8,34,000. Thus the total for rehabilitation comes to Rs. 50 lakhs approximately. The Tribunal accepted the divisor 5 to give effect to the bonus formula on the basis that the cost of rehabilitation should be spread over five years. In our opinion, the Tribunal proceeded on the right basis except on the figure of reserves which has to be deducted. Dividing Rs. 50 lakhs by five, we get a figure of Rs. 10 lakhs. In terms of the bonus formula therefore, there was no available surplus for the year l960-61 but there was a deficit.10. We were not impressed by theargument on behalf of the respondents that as no experts were examined before the Tribunal there was no basis for calculation of the provision forIt appears that in support of its claim in that case the company produced a number of statements prepared by witness who claimed to be experts showing the replacements value of buildings, machinery, furniturethis case, we find that half the machinery was over Rs. 2 lakhs every year for repairs according to the evidence of the Chief Engineer and that its efficiency had dwindled considerably. We also see no reason to reject the evidence adduced before the Tribunal that the company had applied for a loan of Rs. 56 lakhs from the Government for rehabilitation purpose and we accordingly are of the view that the Tribunal proceeded on the correct basis so far as rehabilitation charges are concerned.11. There remains the point about the working capital of the company. No case is here made that the reserves of the company were being used for any purpose other than the business of the company. The accounts of the company show that its secured liability exceeded Rs. 1,16,00,000 and its unsecured loans exceed Rs. 28,00,000. Unless, therefore, there is evidence to show that the reserves were no-existent or they were being utilised for a purpose other than the business of the company, it is reasonable to assume that the reserves were being utilised as working capital of the company.
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Som Chand Sanghvi Vs. Bibhuti Bhusan Chakravarty | to Burrabazar police station along with another Sub-Inspector S. Bhattacharya, visited his residence, searched his house and arrested him. Neither of them had any warrant with them for the search of the house or for the arrest of the appellant. Upon enquiry by him from these persons they told him that this was being done under the orders of the respondent. After his arrest the appellant said that he was taken to the Burrabazar police station at about 7.00 a. m. and then to Jorasanko police station and produced before T. K. Talukdar, Sub-Inspector in charge of that police station. From there he was taken to various places in Calcutta with a rope tied round his waist by Kundu and Bhattacharya and was eventually produced at about 12 noon before the respondent and in his office at Lalbazar. There the respondent started threatening the appellant and asked him to settle the dispute with Manoharlal Seth and pay him Rs. 5000/- or to acknowledge in writing that he would pay this sum of money to Manoharlal Seth. At about 3.30 p. m. on the same day his brother Iswarilal accompanied by a lawyer Chakravaty visited the respondents office and sought the appellants release on bail as the offence was bilabile one. The respondent, however, refused to grant bail saying that no bail would be granted until a sum of Rs. 5,000/- was paid to Manoharlal Seth. The appellant says that he was detained at Lalbazar police station till 8.00 p.m. From there he was taken to Jorasanko police station and kept in the lock-up for the whole night. On the next day, that is, August 4, 1960 he was again produced before the respondent at Lalbazar where the latter repeated his threats and that after obtaining his finger prints and taking his photographs he was taken to the court of the Additional Chief Presidency Magistrate where he was released on bail at about 2.30 p.m. 5. On August 19, 1960 the appellant preferred a complaint before the Chief Presidency Magistrate, Calcutta under S. 348 and S. 220, I. P. C., and S. 13C of the Calcutta Police Act, 1866. In so far as two of the persons named as accused therein, S. I. Kundu and S. I. Talukdar, he decided to issue process against him under S. 220 I. P. C. and S. 13C of the Calcutta Police Act. As regards the respondent, he decided to issue process against him under S. 348, I. P .C. Upon a revision application preferred by the respondent the High Court quashed the process issued against him by the learned Chief Presidency Magistrate. The ground urged before the High Court on behalf of the respondent was that before he could be proceeded against sanction of the State Government under S. 197, Cr. P. C. ought to have been obtained. This contention was upheld by the High Court. 6. On behalf of the appellant Mr. Sukumar Ghose contends that the High Court in quashing the process has proceeded to decide on the merits of the case even though there was no material before it to do so and that therefore is judgment cannot stand.7. It is true that for considering whether S. 197, Cr. P. C. would apply the Court must confine itself to the allegations made in the complaint. But that does not mean that it need not look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance. Here the substantial allegation is that the respondent questioned the appellant when he was produced at his office in Lalbazar, asked him to restore Rs. 5,000/- to Manoharlal Seth who had lodged a complaint of cheating against the appellant and two others and that he declined to release him on bail. No doubt the appellant has made a grievance in his complaint that the respondent said that the appellant would not be released on bail unless he either paid the amount or acknowledged in writing his liability to pay this amount. Assuming that the allegation is true all that the thing boils down to is that the respondent refused to enlarge the appellant on bail and that he wanted the appellant to settle the matter with Manoharlal Seth. It cannot be disputed that whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant. For this reason the sanction of the appropriate authority for the respondents prosecution was necessary under S. 197, Cr. P. C. 8. Mr. Ghose, however, contends that the appellants detention in the respondents office was illegal and that, therefore, the respondent could not be said to have been in a position to exercise any lawful authority with respect to him. It is difficult to appreciate how the appellants detention could be said to be illegal because it was in pursuance of the investigation of the complaint lodged by Manoharlal Seth that he was arrested and brought for interrogation before the respondent. It was not disputed before us that investigation into Manoharlals complaint had been ordered though there is a dispute as to whether it was ordered by the respondent or by the Deputy Commissioner of Police. Whether it was by one or the other makes little difference. We would like to make it clear that Mr. Ghose did not contend before us that the appellants detention in the office of the respondent was illegal because his initial arrest was without a warrant. But we may point out that a police officer is legally empowered to arrest a person alleged to have committed an offence under S. 420, I. P. C. without a warrant. | 0[ds]7. It is true that for considering whether S. 197, Cr. P. C. would apply the Court must confine itself to the allegations made in the complaint. But that does not mean that it need not look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance. Here the substantial allegation is that the respondent questioned the appellant when he was produced at his office in Lalbazar, asked him to restore Rs. 5,000/- to Manoharlal Seth who had lodged a complaint of cheating against the appellant and two others and that he declined to release him on bail. No doubt the appellant has made a grievance in his complaint that the respondent said that the appellant would not be released on bail unless he either paid the amount or acknowledged in writing his liability to pay this amount. Assuming that the allegation is true all that the thing boils down to is that the respondent refused to enlarge the appellant on bail and that he wanted the appellant to settle the matter with Manoharlal Seth. It cannot be disputed that whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant. For this reason the sanction of the appropriate authority for the respondents prosecution was necessary under S. 197, Cr. P. CIt is difficult to appreciate how the appellants detention could be said to be illegal because it was in pursuance of the investigation of the complaint lodged by Manoharlal Seth that he was arrested and brought for interrogation before the respondent. It was not disputed before us that investigation into Manoharlals complaint had been ordered though there is a dispute as to whether it was ordered by the respondent or by the Deputy Commissioner of Police. Whether it was by one or the other makes little difference. We would like to make it clear that Mr. Ghose did not contend before us that the appellants detention in the office of the respondent was illegal because his initial arrest was without a warrant. But we may point out that a police officer is legally empowered to arrest a person alleged to have committed an offence under S. 420, I. P. C. without a warrant. | 0 | 1,388 | 459 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
to Burrabazar police station along with another Sub-Inspector S. Bhattacharya, visited his residence, searched his house and arrested him. Neither of them had any warrant with them for the search of the house or for the arrest of the appellant. Upon enquiry by him from these persons they told him that this was being done under the orders of the respondent. After his arrest the appellant said that he was taken to the Burrabazar police station at about 7.00 a. m. and then to Jorasanko police station and produced before T. K. Talukdar, Sub-Inspector in charge of that police station. From there he was taken to various places in Calcutta with a rope tied round his waist by Kundu and Bhattacharya and was eventually produced at about 12 noon before the respondent and in his office at Lalbazar. There the respondent started threatening the appellant and asked him to settle the dispute with Manoharlal Seth and pay him Rs. 5000/- or to acknowledge in writing that he would pay this sum of money to Manoharlal Seth. At about 3.30 p. m. on the same day his brother Iswarilal accompanied by a lawyer Chakravaty visited the respondents office and sought the appellants release on bail as the offence was bilabile one. The respondent, however, refused to grant bail saying that no bail would be granted until a sum of Rs. 5,000/- was paid to Manoharlal Seth. The appellant says that he was detained at Lalbazar police station till 8.00 p.m. From there he was taken to Jorasanko police station and kept in the lock-up for the whole night. On the next day, that is, August 4, 1960 he was again produced before the respondent at Lalbazar where the latter repeated his threats and that after obtaining his finger prints and taking his photographs he was taken to the court of the Additional Chief Presidency Magistrate where he was released on bail at about 2.30 p.m. 5. On August 19, 1960 the appellant preferred a complaint before the Chief Presidency Magistrate, Calcutta under S. 348 and S. 220, I. P. C., and S. 13C of the Calcutta Police Act, 1866. In so far as two of the persons named as accused therein, S. I. Kundu and S. I. Talukdar, he decided to issue process against him under S. 220 I. P. C. and S. 13C of the Calcutta Police Act. As regards the respondent, he decided to issue process against him under S. 348, I. P .C. Upon a revision application preferred by the respondent the High Court quashed the process issued against him by the learned Chief Presidency Magistrate. The ground urged before the High Court on behalf of the respondent was that before he could be proceeded against sanction of the State Government under S. 197, Cr. P. C. ought to have been obtained. This contention was upheld by the High Court. 6. On behalf of the appellant Mr. Sukumar Ghose contends that the High Court in quashing the process has proceeded to decide on the merits of the case even though there was no material before it to do so and that therefore is judgment cannot stand.7. It is true that for considering whether S. 197, Cr. P. C. would apply the Court must confine itself to the allegations made in the complaint. But that does not mean that it need not look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance. Here the substantial allegation is that the respondent questioned the appellant when he was produced at his office in Lalbazar, asked him to restore Rs. 5,000/- to Manoharlal Seth who had lodged a complaint of cheating against the appellant and two others and that he declined to release him on bail. No doubt the appellant has made a grievance in his complaint that the respondent said that the appellant would not be released on bail unless he either paid the amount or acknowledged in writing his liability to pay this amount. Assuming that the allegation is true all that the thing boils down to is that the respondent refused to enlarge the appellant on bail and that he wanted the appellant to settle the matter with Manoharlal Seth. It cannot be disputed that whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant. For this reason the sanction of the appropriate authority for the respondents prosecution was necessary under S. 197, Cr. P. C. 8. Mr. Ghose, however, contends that the appellants detention in the respondents office was illegal and that, therefore, the respondent could not be said to have been in a position to exercise any lawful authority with respect to him. It is difficult to appreciate how the appellants detention could be said to be illegal because it was in pursuance of the investigation of the complaint lodged by Manoharlal Seth that he was arrested and brought for interrogation before the respondent. It was not disputed before us that investigation into Manoharlals complaint had been ordered though there is a dispute as to whether it was ordered by the respondent or by the Deputy Commissioner of Police. Whether it was by one or the other makes little difference. We would like to make it clear that Mr. Ghose did not contend before us that the appellants detention in the office of the respondent was illegal because his initial arrest was without a warrant. But we may point out that a police officer is legally empowered to arrest a person alleged to have committed an offence under S. 420, I. P. C. without a warrant.
### Response:
0
### Explanation:
7. It is true that for considering whether S. 197, Cr. P. C. would apply the Court must confine itself to the allegations made in the complaint. But that does not mean that it need not look beyond the form in which the allegations have been made and is incompetent to ascertain for itself their substance. Here the substantial allegation is that the respondent questioned the appellant when he was produced at his office in Lalbazar, asked him to restore Rs. 5,000/- to Manoharlal Seth who had lodged a complaint of cheating against the appellant and two others and that he declined to release him on bail. No doubt the appellant has made a grievance in his complaint that the respondent said that the appellant would not be released on bail unless he either paid the amount or acknowledged in writing his liability to pay this amount. Assuming that the allegation is true all that the thing boils down to is that the respondent refused to enlarge the appellant on bail and that he wanted the appellant to settle the matter with Manoharlal Seth. It cannot be disputed that whether a person charged with an offence should or should not be released on bail was a matter within the discretion of the respondent and if while exercising a discretion he acted illegally by saying that bail would not be granted unless the appellant did something which the appellant was not bound to do, the respondent cannot be said to have acted otherwise than in his capacity as a public servant. For this reason the sanction of the appropriate authority for the respondents prosecution was necessary under S. 197, Cr. P. CIt is difficult to appreciate how the appellants detention could be said to be illegal because it was in pursuance of the investigation of the complaint lodged by Manoharlal Seth that he was arrested and brought for interrogation before the respondent. It was not disputed before us that investigation into Manoharlals complaint had been ordered though there is a dispute as to whether it was ordered by the respondent or by the Deputy Commissioner of Police. Whether it was by one or the other makes little difference. We would like to make it clear that Mr. Ghose did not contend before us that the appellants detention in the office of the respondent was illegal because his initial arrest was without a warrant. But we may point out that a police officer is legally empowered to arrest a person alleged to have committed an offence under S. 420, I. P. C. without a warrant.
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State Of Punjab Vs. Suraj Parkash Kapur, Etc | of Rehabilitation No. 8R or 9R, dated the 23rd July, 1949 and published in the Official Gazette of that State, dated the 7th August, 1949.and such property is acquired under the provisions of this Act and forms part of the compensation pool, the displaced person shall, so long as the property remains vested in the Central Government, continue in possession of such property on the same conditions on which he held the property immediately before the date of the acquisition, and the Central Government may, for the purpose of payment of compensation to such displaced person, transfer to him such property on such terms and conditions as may be prescribed.Section 12(1) if the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation to such persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section.A reference to R. 14(6) of the rules made under the Administration of Evacuee Property Act, 1950, will also be useful in this context. Under that rule the Custodian has no power to make any order after July 22, 1952, cancelling or varying the allotments made, subject to certain exceptions with which we are not concerned here. The result of these provisions is that under the Administration of Evacuee Property Act, the respondents became quasi-permanent allottees in respect of the land allotted them in 1950.After July 22, 1952 the Custodian ceased to have any authority to cancel or modify the said allotment. After the notification issued by the Government under S.12 of the Act. so long as the property remained vested in the Central Government, the respondents continued to be in possession of the property on the same conditions on which they held the property immediately before the date of acquisition, that is, under a quasi-permanent tenure. The contention that on the issue of the said notification, the respondents ceased to have any interest in the said land is without any foundation. It is, therefore, clear that on the date when the respondents filed the petition in the High Court they had a very valuable right in the properties allotted to them which entitled them to ask the High Court to give them relief under Art. 226 of the Constitution.6. That apart, on February, 23, 1956, the Central Government issued a sanad to the respondents conferring an absolute right on them in respect of the said properties. Though the sanad was issued subsequent to the filing of the petition, it was before the petition came to be disposed of by the High Court. At the time the High Court disposed of the petition, the limited right of the respondents had blossomed into a full fledged property right. In the circumstances of the case, the High Court was fully justified in taking note of that fact. From whatever perspective this case is looked at, it is obvious that the respondents have sufficient interest in the property to sustain their petition under Art.226 of the Constitution.7. Re. (2). The second point has absolutely no legs to stand upon. The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, was enaceted in the words of the long title annexed to the Act, to provide for compulsory consolidation of agricultural holdings and for the prevention of fragmentation of agricultural holdings in the State of Punjab. Under S. 15 of the said Act, the scheme prepared by the Consolidation Officer shall provide for the payment of compensation to any owner who is allotted a holding of less market value than that of his original holding and for the recovery of compensation from any owner who is allotted a holding of greater market value than that of his original holding. There is no provision in the Act empowering the Consolidation Officer to deprive a person of any part of his property without allotting to him property to equal value or paying him compensation if he is allotted a holding of less market value than that of his original holding. In the present case it is not disputed that while the respondents were allotted 123 kanals and 18 marlas of A Grade land on a quasi- permanent basis by the Custodian and latter confirmed by the Central Government, the consolidation proceedings gave him only 50 kanals and 7 marlas of A Grade land, and 34 kanals and 1 marila of B Grade land. The area given under the consolidation proceedings is admittedly of less value than that of the holding allotted to the respondents by the Custodian, and the Consolidation Officer has not paid any compensation for the deficiency. This unjust situation in which the respondents have been placed is sought to be supported by learned counsel for the State on the basis of the instructions given to the Consolidation Officer by the State Government. There is no provision in the Act empowering the State Government to give any such instructions to the Consolidation Officer; nor does any provision of the Act confer on the State Government any power to make rules or issue notifications to deprive owners of land or any part thereof or to direct the Consolidation Officer as to how he should exercise his statutory duties. Any such rule would be repugnant to the provisions of the Act. That apart no such statutory rule empowering the State Government to issue such instruction has been placed before us. Both here as well as in the High Court, learned counsel appearing for the State has not been able to sustain the validity of such instructions on any legal basis. The order of the appropriate officers confirming the scheme on the basis of the said instructions was obviously illegal and, therefore, was rightly set aside by the High Court. | 0[ds]The result of these provisions is that under the Administration of Evacuee Property Act, the respondents became quasi-permanent allottees in respect of the land allotted them in 1950.After July 22, 1952 the Custodian ceased to have any authority to cancel or modify the said allotment. After the notification issued by the Government under S.12 of the Act. so long as the property remained vested in the Central Government, the respondents continued to be in possession of the property on the same conditions on which they held the property immediately before the date of acquisition, that is, under a quasi-permanent tenure. The contention that on the issue of the said notification, the respondents ceased to have any interest in the said land is without any foundation. It is, therefore, clear that on the date when the respondents filed the petition in the High Court they had a very valuable right in the properties allotted to them which entitled them to ask the High Court to give them relief under Art. 226 of the Constitution.6. That apart, on February, 23, 1956, the Central Government issued a sanad to the respondents conferring an absolute right on them in respect of the said properties. Though the sanad was issued subsequent to the filing of the petition, it was before the petition came to be disposed of by the High Court. At the time the High Court disposed of the petition, the limited right of the respondents had blossomed into a full fledged property right. In the circumstances of the case, the High Court was fully justified in taking note of that fact. From whatever perspective this case is looked at, it is obvious that the respondents have sufficient interest in the property to sustain their petition under Art.226 of the Constitution.7. Re. (2). The second point has absolutely no legs to stand upon. The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, was enaceted in the words of the long title annexed to the Act, to provide for compulsory consolidation of agricultural holdings and for the prevention of fragmentation of agricultural holdings in the State of Punjab. Under S. 15 of the said Act, the scheme prepared by the Consolidation Officer shall provide for the payment of compensation to any owner who is allotted a holding of less market value than that of his original holding and for the recovery of compensation from any owner who is allotted a holding of greater market value than that of his original holding. There is no provision in the Act empowering the Consolidation Officer to deprive a person of any part of his property without allotting to him property to equal value or paying him compensation if he is allotted a holding of less market value than that of his original holding. In the present case it is not disputed that while the respondents were allotted 123 kanals and 18 marlas of A Grade land on a quasi- permanent basis by the Custodian and latter confirmed by the Central Government, the consolidation proceedings gave him only 50 kanals and 7 marlas of A Grade land, and 34 kanals and 1 marila of B Grade land. The area given under the consolidation proceedings is admittedly of less value than that of the holding allotted to the respondents by the Custodian, and the Consolidation Officer has not paid any compensation for the deficiency. This unjust situation in which the respondents have been placed is sought to be supported by learned counsel for the State on the basis of the instructions given to the Consolidation Officer by the State Government. There is no provision in the Act empowering the State Government to give any such instructions to the Consolidation Officer; nor does any provision of the Act confer on the State Government any power to make rules or issue notifications to deprive owners of land or any part thereof or to direct the Consolidation Officer as to how he should exercise his statutory duties. Any such rule would be repugnant to the provisions of the Act. That apart no such statutory rule empowering the State Government to issue such instruction has been placed before us. Both here as well as in the High Court, learned counsel appearing for the State has not been able to sustain the validity of such instructions on any legal basis. The order of the appropriate officers confirming the scheme on the basis of the said instructions was obviously illegal and, therefore, was rightly set aside by the High Court. | 0 | 2,366 | 816 | ### 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:
of Rehabilitation No. 8R or 9R, dated the 23rd July, 1949 and published in the Official Gazette of that State, dated the 7th August, 1949.and such property is acquired under the provisions of this Act and forms part of the compensation pool, the displaced person shall, so long as the property remains vested in the Central Government, continue in possession of such property on the same conditions on which he held the property immediately before the date of the acquisition, and the Central Government may, for the purpose of payment of compensation to such displaced person, transfer to him such property on such terms and conditions as may be prescribed.Section 12(1) if the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation to such persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section.A reference to R. 14(6) of the rules made under the Administration of Evacuee Property Act, 1950, will also be useful in this context. Under that rule the Custodian has no power to make any order after July 22, 1952, cancelling or varying the allotments made, subject to certain exceptions with which we are not concerned here. The result of these provisions is that under the Administration of Evacuee Property Act, the respondents became quasi-permanent allottees in respect of the land allotted them in 1950.After July 22, 1952 the Custodian ceased to have any authority to cancel or modify the said allotment. After the notification issued by the Government under S.12 of the Act. so long as the property remained vested in the Central Government, the respondents continued to be in possession of the property on the same conditions on which they held the property immediately before the date of acquisition, that is, under a quasi-permanent tenure. The contention that on the issue of the said notification, the respondents ceased to have any interest in the said land is without any foundation. It is, therefore, clear that on the date when the respondents filed the petition in the High Court they had a very valuable right in the properties allotted to them which entitled them to ask the High Court to give them relief under Art. 226 of the Constitution.6. That apart, on February, 23, 1956, the Central Government issued a sanad to the respondents conferring an absolute right on them in respect of the said properties. Though the sanad was issued subsequent to the filing of the petition, it was before the petition came to be disposed of by the High Court. At the time the High Court disposed of the petition, the limited right of the respondents had blossomed into a full fledged property right. In the circumstances of the case, the High Court was fully justified in taking note of that fact. From whatever perspective this case is looked at, it is obvious that the respondents have sufficient interest in the property to sustain their petition under Art.226 of the Constitution.7. Re. (2). The second point has absolutely no legs to stand upon. The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, was enaceted in the words of the long title annexed to the Act, to provide for compulsory consolidation of agricultural holdings and for the prevention of fragmentation of agricultural holdings in the State of Punjab. Under S. 15 of the said Act, the scheme prepared by the Consolidation Officer shall provide for the payment of compensation to any owner who is allotted a holding of less market value than that of his original holding and for the recovery of compensation from any owner who is allotted a holding of greater market value than that of his original holding. There is no provision in the Act empowering the Consolidation Officer to deprive a person of any part of his property without allotting to him property to equal value or paying him compensation if he is allotted a holding of less market value than that of his original holding. In the present case it is not disputed that while the respondents were allotted 123 kanals and 18 marlas of A Grade land on a quasi- permanent basis by the Custodian and latter confirmed by the Central Government, the consolidation proceedings gave him only 50 kanals and 7 marlas of A Grade land, and 34 kanals and 1 marila of B Grade land. The area given under the consolidation proceedings is admittedly of less value than that of the holding allotted to the respondents by the Custodian, and the Consolidation Officer has not paid any compensation for the deficiency. This unjust situation in which the respondents have been placed is sought to be supported by learned counsel for the State on the basis of the instructions given to the Consolidation Officer by the State Government. There is no provision in the Act empowering the State Government to give any such instructions to the Consolidation Officer; nor does any provision of the Act confer on the State Government any power to make rules or issue notifications to deprive owners of land or any part thereof or to direct the Consolidation Officer as to how he should exercise his statutory duties. Any such rule would be repugnant to the provisions of the Act. That apart no such statutory rule empowering the State Government to issue such instruction has been placed before us. Both here as well as in the High Court, learned counsel appearing for the State has not been able to sustain the validity of such instructions on any legal basis. The order of the appropriate officers confirming the scheme on the basis of the said instructions was obviously illegal and, therefore, was rightly set aside by the High Court.
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### Explanation:
The result of these provisions is that under the Administration of Evacuee Property Act, the respondents became quasi-permanent allottees in respect of the land allotted them in 1950.After July 22, 1952 the Custodian ceased to have any authority to cancel or modify the said allotment. After the notification issued by the Government under S.12 of the Act. so long as the property remained vested in the Central Government, the respondents continued to be in possession of the property on the same conditions on which they held the property immediately before the date of acquisition, that is, under a quasi-permanent tenure. The contention that on the issue of the said notification, the respondents ceased to have any interest in the said land is without any foundation. It is, therefore, clear that on the date when the respondents filed the petition in the High Court they had a very valuable right in the properties allotted to them which entitled them to ask the High Court to give them relief under Art. 226 of the Constitution.6. That apart, on February, 23, 1956, the Central Government issued a sanad to the respondents conferring an absolute right on them in respect of the said properties. Though the sanad was issued subsequent to the filing of the petition, it was before the petition came to be disposed of by the High Court. At the time the High Court disposed of the petition, the limited right of the respondents had blossomed into a full fledged property right. In the circumstances of the case, the High Court was fully justified in taking note of that fact. From whatever perspective this case is looked at, it is obvious that the respondents have sufficient interest in the property to sustain their petition under Art.226 of the Constitution.7. Re. (2). The second point has absolutely no legs to stand upon. The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, was enaceted in the words of the long title annexed to the Act, to provide for compulsory consolidation of agricultural holdings and for the prevention of fragmentation of agricultural holdings in the State of Punjab. Under S. 15 of the said Act, the scheme prepared by the Consolidation Officer shall provide for the payment of compensation to any owner who is allotted a holding of less market value than that of his original holding and for the recovery of compensation from any owner who is allotted a holding of greater market value than that of his original holding. There is no provision in the Act empowering the Consolidation Officer to deprive a person of any part of his property without allotting to him property to equal value or paying him compensation if he is allotted a holding of less market value than that of his original holding. In the present case it is not disputed that while the respondents were allotted 123 kanals and 18 marlas of A Grade land on a quasi- permanent basis by the Custodian and latter confirmed by the Central Government, the consolidation proceedings gave him only 50 kanals and 7 marlas of A Grade land, and 34 kanals and 1 marila of B Grade land. The area given under the consolidation proceedings is admittedly of less value than that of the holding allotted to the respondents by the Custodian, and the Consolidation Officer has not paid any compensation for the deficiency. This unjust situation in which the respondents have been placed is sought to be supported by learned counsel for the State on the basis of the instructions given to the Consolidation Officer by the State Government. There is no provision in the Act empowering the State Government to give any such instructions to the Consolidation Officer; nor does any provision of the Act confer on the State Government any power to make rules or issue notifications to deprive owners of land or any part thereof or to direct the Consolidation Officer as to how he should exercise his statutory duties. Any such rule would be repugnant to the provisions of the Act. That apart no such statutory rule empowering the State Government to issue such instruction has been placed before us. Both here as well as in the High Court, learned counsel appearing for the State has not been able to sustain the validity of such instructions on any legal basis. The order of the appropriate officers confirming the scheme on the basis of the said instructions was obviously illegal and, therefore, was rightly set aside by the High Court.
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State Of Andhra Pradesh Vs. S. M. K. Parasurama Gurukul | questions of policy or expediency and if so whether in arriving at the decision, the statutory body has to consider proposals and objections and evidence; and(v) whether in arriving at its decision, the statutory body has only to consider policy and expediency and at no stage has before it any form of list"Subba Rao. J., who differed from the majority, after referring to the formulation of the principles in Advanis case, earlier referred to, as unexceptionable and also to the discussion in R. v. Manchester Legal Aid Committee, (1952) 2 QB 413 stated the principles, in his own words thus:"Every act of an administrative authority is not an administrative or ministerial act. The provisions of a statute may enjoin on an administrative authority to act administratively or to act judicially or to act in part administratively and in part judicially. If policy and expediency are the guiding factors in part or in whole throughout the entire process culminating in the final decision, it is an obvious case of administrative act.On the other hand, if the statute expressly imposes a duty on the administrative body to act judicially, it is again a clear case of a judicial act. Between the two, there are many acts, the determination of whose character creates difficult problems for the court. There may be cases where at one stage of the process the said body may have to act judicially and at another stage ministerially. The rule can be broadly stated thus: The duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inexorable rule of guidance."In Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, 1959 (Supp)1 SCR 319 =(AIR 1959) SC 308 ), Subba Rao, J., after referring to the various decisions on this subject held:"....whether an administrative tribunal has a duty to act judicially should be gathered from the provisions of the particular statute and the rules made thereunder, and they clearly express the view that if an authority is called upon to decide respective rights of contesting parties or, to put it in other words, if there is a lis, ordinarily there will be a duty on the part of the said authority to act judicially."4. It is hardly necessary to say that in this case the respondent had no right to be appointed a trustee; nor had any of the other persons who were appointed trustees. There was no question of a proposition and an opposition. There is, therefore, no question of any list. Nor is here any question of contest between the authority proposing to do the act and the subject opposing it. Such a question will arise only if any right of the subject is affected. None of the other tests laid down above are satisfied in this case.5. An examination of the provisions of the statute, which is an Act to consolidate and amend the law relating to the administration and government of charitable and Hindu religious institutions and endowments does not show that in appointing trustees to temples the concerned authorities have to act judicially. Nor is the appointment of trustees under Section 15 left to the administrative authority without any guidelines laid down by the Legislature for being followed. Section 16 lays down the disqualifications for being appointed a trustee. Section 15 (4) lays down that in making the appointment of trustees due regard shall be had to the religious denomination or any section thereof to which the institution belongs or the endowment is made and the wishes of the founder. If the appointment satisfies the above tests and if the person appointed is not disqualified under any of the clauses of Section 16, the appointment will not be affected in any way. The administrative authority concerned does not have to weigh the relative merits of various candidates in making the appointment of trustees. Normally it would exercise its own discretion as to who is best fitted to discharge the duties and functions of a trustee. But that is not to say that it must set out the reasons as to why it has appointed somebody as trustee and not appointed somebody else as a trustee. The Legislature has left the matter to the discretion of the appointing authority subject to the guidelines that it has laid down in Sections 15 and 16.We do not consider that the fact that under Section 82 of the Act the Commissioner has got the power of revision in respect of orders passed by his subordinates and the Government in respect of orders passed by the Commissioner as well as his subordinates (there is no provision in the Act for a judicial review in respect of the orders passed by the Government) in anyway limits their powers under Section 15 (1) (a). We are of opinion that the learned Judges of the High Court were in error in so far as the implication of their observation is that in exercising their powers under Section 15 the administrative authorities concerned are exercising quasi-judicial functions and that it was necessary to have a speaking order. We find the Madras High Court in Commissioner., H. R. and C. E. v. B. R Venkatachalapathi, (l972) 85 Mad LW 349 after a very elaborate and instructive discussion has taken a similar view respect of the powers of appointment of non-hereditary trustees under Section 47 of the Madras Hindu Religion and Charitable Endowments Act, 1959, which more or less corresponds to Section 15 of this Act. | 1[ds]4. It is hardly necessary to say that in this case the respondent had no right to be appointed a trustee; nor had any of the other persons who were appointed trustees. There was no question of a proposition and an opposition. There is, therefore, no question of any list. Nor is here any question of contest between the authority proposing to do the act and the subject opposing it. Such a question will arise only if any right of the subject is affected. None of the other tests laid down above are satisfied in this case.5. An examination of the provisions of the statute, which is an Act to consolidate and amend the law relating to the administration and government of charitable and Hindu religious institutions and endowments does not show that in appointing trustees to temples the concerned authorities have to act judicially. Nor is the appointment of trustees under Section 15 left to the administrative authority without any guidelines laid down by the Legislature for being followed. Section 16 lays down the disqualifications for being appointed a trustee. Section 15 (4) lays down that in making the appointment of trustees due regard shall be had to the religious denomination or any section thereof to which the institution belongs or the endowment is made and the wishes of the founder. If the appointment satisfies the above tests and if the person appointed is not disqualified under any of the clauses of Section 16, the appointment will not be affected in any way. The administrative authority concerned does not have to weigh the relative merits of various candidates in making the appointment of trustees. Normally it would exercise its own discretion as to who is best fitted to discharge the duties and functions of a trustee. But that is not to say that it must set out the reasons as to why it has appointed somebody as trustee and not appointed somebody else as a trustee. The Legislature has left the matter to the discretion of the appointing authority subject to the guidelines that it has laid down in Sections 15 and 16.We do not consider that the fact that under Section 82 of the Act the Commissioner has got the power of revision in respect of orders passed by his subordinates and the Government in respect of orders passed by the Commissioner as well as his subordinates (there is no provision in the Act for a judicial review in respect of the orders passed by the Government) in anyway limits their powers under Section 15 (1) (a). We are of opinion that the learned Judges of the High Court were in error in so far as the implication of their observation is that in exercising their powers under Section 15 the administrative authorities concerned are exercising quasi-judicial functions and that it was necessary to have a speaking order. We find the Madras High Court in Commissioner., H. R. and C. E. v. B. R Venkatachalapathi, (l972) 85 Mad LW 349 after a very elaborate and instructive discussion has taken a similar view respect of the powers of appointment of non-hereditary trustees under Section 47 of the Madras Hindu Religion and Charitable Endowments Act, 1959, which more or less corresponds to Section 15 of this Act. | 1 | 2,892 | 588 | ### 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:
questions of policy or expediency and if so whether in arriving at the decision, the statutory body has to consider proposals and objections and evidence; and(v) whether in arriving at its decision, the statutory body has only to consider policy and expediency and at no stage has before it any form of list"Subba Rao. J., who differed from the majority, after referring to the formulation of the principles in Advanis case, earlier referred to, as unexceptionable and also to the discussion in R. v. Manchester Legal Aid Committee, (1952) 2 QB 413 stated the principles, in his own words thus:"Every act of an administrative authority is not an administrative or ministerial act. The provisions of a statute may enjoin on an administrative authority to act administratively or to act judicially or to act in part administratively and in part judicially. If policy and expediency are the guiding factors in part or in whole throughout the entire process culminating in the final decision, it is an obvious case of administrative act.On the other hand, if the statute expressly imposes a duty on the administrative body to act judicially, it is again a clear case of a judicial act. Between the two, there are many acts, the determination of whose character creates difficult problems for the court. There may be cases where at one stage of the process the said body may have to act judicially and at another stage ministerially. The rule can be broadly stated thus: The duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inexorable rule of guidance."In Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, 1959 (Supp)1 SCR 319 =(AIR 1959) SC 308 ), Subba Rao, J., after referring to the various decisions on this subject held:"....whether an administrative tribunal has a duty to act judicially should be gathered from the provisions of the particular statute and the rules made thereunder, and they clearly express the view that if an authority is called upon to decide respective rights of contesting parties or, to put it in other words, if there is a lis, ordinarily there will be a duty on the part of the said authority to act judicially."4. It is hardly necessary to say that in this case the respondent had no right to be appointed a trustee; nor had any of the other persons who were appointed trustees. There was no question of a proposition and an opposition. There is, therefore, no question of any list. Nor is here any question of contest between the authority proposing to do the act and the subject opposing it. Such a question will arise only if any right of the subject is affected. None of the other tests laid down above are satisfied in this case.5. An examination of the provisions of the statute, which is an Act to consolidate and amend the law relating to the administration and government of charitable and Hindu religious institutions and endowments does not show that in appointing trustees to temples the concerned authorities have to act judicially. Nor is the appointment of trustees under Section 15 left to the administrative authority without any guidelines laid down by the Legislature for being followed. Section 16 lays down the disqualifications for being appointed a trustee. Section 15 (4) lays down that in making the appointment of trustees due regard shall be had to the religious denomination or any section thereof to which the institution belongs or the endowment is made and the wishes of the founder. If the appointment satisfies the above tests and if the person appointed is not disqualified under any of the clauses of Section 16, the appointment will not be affected in any way. The administrative authority concerned does not have to weigh the relative merits of various candidates in making the appointment of trustees. Normally it would exercise its own discretion as to who is best fitted to discharge the duties and functions of a trustee. But that is not to say that it must set out the reasons as to why it has appointed somebody as trustee and not appointed somebody else as a trustee. The Legislature has left the matter to the discretion of the appointing authority subject to the guidelines that it has laid down in Sections 15 and 16.We do not consider that the fact that under Section 82 of the Act the Commissioner has got the power of revision in respect of orders passed by his subordinates and the Government in respect of orders passed by the Commissioner as well as his subordinates (there is no provision in the Act for a judicial review in respect of the orders passed by the Government) in anyway limits their powers under Section 15 (1) (a). We are of opinion that the learned Judges of the High Court were in error in so far as the implication of their observation is that in exercising their powers under Section 15 the administrative authorities concerned are exercising quasi-judicial functions and that it was necessary to have a speaking order. We find the Madras High Court in Commissioner., H. R. and C. E. v. B. R Venkatachalapathi, (l972) 85 Mad LW 349 after a very elaborate and instructive discussion has taken a similar view respect of the powers of appointment of non-hereditary trustees under Section 47 of the Madras Hindu Religion and Charitable Endowments Act, 1959, which more or less corresponds to Section 15 of this Act.
### Response:
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### Explanation:
4. It is hardly necessary to say that in this case the respondent had no right to be appointed a trustee; nor had any of the other persons who were appointed trustees. There was no question of a proposition and an opposition. There is, therefore, no question of any list. Nor is here any question of contest between the authority proposing to do the act and the subject opposing it. Such a question will arise only if any right of the subject is affected. None of the other tests laid down above are satisfied in this case.5. An examination of the provisions of the statute, which is an Act to consolidate and amend the law relating to the administration and government of charitable and Hindu religious institutions and endowments does not show that in appointing trustees to temples the concerned authorities have to act judicially. Nor is the appointment of trustees under Section 15 left to the administrative authority without any guidelines laid down by the Legislature for being followed. Section 16 lays down the disqualifications for being appointed a trustee. Section 15 (4) lays down that in making the appointment of trustees due regard shall be had to the religious denomination or any section thereof to which the institution belongs or the endowment is made and the wishes of the founder. If the appointment satisfies the above tests and if the person appointed is not disqualified under any of the clauses of Section 16, the appointment will not be affected in any way. The administrative authority concerned does not have to weigh the relative merits of various candidates in making the appointment of trustees. Normally it would exercise its own discretion as to who is best fitted to discharge the duties and functions of a trustee. But that is not to say that it must set out the reasons as to why it has appointed somebody as trustee and not appointed somebody else as a trustee. The Legislature has left the matter to the discretion of the appointing authority subject to the guidelines that it has laid down in Sections 15 and 16.We do not consider that the fact that under Section 82 of the Act the Commissioner has got the power of revision in respect of orders passed by his subordinates and the Government in respect of orders passed by the Commissioner as well as his subordinates (there is no provision in the Act for a judicial review in respect of the orders passed by the Government) in anyway limits their powers under Section 15 (1) (a). We are of opinion that the learned Judges of the High Court were in error in so far as the implication of their observation is that in exercising their powers under Section 15 the administrative authorities concerned are exercising quasi-judicial functions and that it was necessary to have a speaking order. We find the Madras High Court in Commissioner., H. R. and C. E. v. B. R Venkatachalapathi, (l972) 85 Mad LW 349 after a very elaborate and instructive discussion has taken a similar view respect of the powers of appointment of non-hereditary trustees under Section 47 of the Madras Hindu Religion and Charitable Endowments Act, 1959, which more or less corresponds to Section 15 of this Act.
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Hemalatha Gargya Vs. Commnr. Of Income Tax, A.P. | itself, there can be no manner of doubt that such statutory requirement must be interpreted as mandatory (See: Maqbool Ahmad and Ors. v. Onkar Pratap Narayan Singh AIR 1935 PC, 85, 88). 10. Besides the scheme has conferred a benefit on those who had not disclosed their income earlier by affording them protection against the possible legal consequences of such non disclosure under the provisions of the Income Tax Act. Where the assessees seeks to claim the benefit under the statutory scheme they are bound to comply strictly with the conditions under which the benefit is granted. There is no scope for the application of any equitable consideration when the statutory provisions of the Scheme are stated in such plain language.11. Seen from the angle of the Designated authority, which is created under the Scheme, it clear that the authority cannot act beyond the provisions of the Scheme itself. The power to accept payment under the Scheme has been prescribed by the statute. There is no scope for the Revenue Authorities to imply a provision not specifically provided for which would in any way modify the explicit terms of the Scheme. 12. In the decision in Laxmi Mittals case the High Court had relied upon a circular issued by the Central Board of Direct Taxes under Section 119(2)(b) of the Income Tax Act. 1961. The circular has not been brought on record. Assuming that the High Courts reproduction of the contents is incorrect, all that the circular said was that the date for calculating interest would be 90 days from the date of declaration and if the 90th day happens to be a Bank holiday, payment on the 91st day being, the next working day, would be valid. This circular certainly does not mean that the Board had thereby empowered the Commissioner under Section 119(2)(b) to extend the period for the making of payment on sufficient cause being shown. All that the circular does is state what is provided in Section 10 of the General Clauses Act, 1897 and Section 4 of the Limitation Act, 1963. It is a general rule of interpretation and not an order empowering the Commissioner. In any event, it is doubtful whether the Board could have empowered the Commissioner to extend the time fixed for Sections 66 and 67 of the Scheme under Section 119(2)(b) of the Income Tax Act, 1961 given the wording of the Scheme and the fact that the Scheme does not form part of the Income Tax Act, 1961 at all. 13. In none of the decisions of the High Courts which have held that the time prescribed under Section 67(1) was not rigid has any legal basis been relied on, the decision to extend the time appears to have been arrived at on consideration of equity. This approach, in our opinion, was incorrect, as the court had no power to act beyond the terms of the Statutory Scheme under which benefits had been granted to the assessee. By so holding we make it clear we do not intend to reopen those decisions which have become final in favour of the assessees. It may also be noted that in one of such decisions, the Revenue had sought to prefer an appeal before the Court by way of a special leave petition which was dismissed in limine. It needs hardly to be stated that such dismissal would not operate as confirmation of the reasoning in the decision sought to be appealed against, nor does such dismissal by itself operate as an argument in favour of the assessee and against the Revenue. 14. The decision of this Court in Union of India and Ors. v. Kaumudini Narayan Dalal and Anr. (Supra) and Union of India v. Satish Panalal Shah (Supra) do not, as contended by the assessees, hold that the Revenue can never challenge an interpretation which they have not chosen to do so earlier. First, it appears to us that the principle appears to be limited to decisions of the jurisdictional High Court. Additionally, the decisions make it clear that given "just cause", the Department could challenge the interpretation subsequently. We accept the submission of the Revenue that in this case, decisions of other High Courts holding to the contrary as well as the subsequent conflicting decision of the Punjab and Haryana High Court itself would come within the phrase "just cause". 15. The submissions of the assessees that this Court can dilute the rigour of Section 67(2) on the basis of the ratio in M/s. Hindustan Steel Ltd. v. State of Orissa 1969 (2) SCC 627 is unacceptable. That was a case which dealt with the imposition of a minimum penalty for failure to carry out a statutory obligation. The Court held that such an order imposing penalty is the result of a quasi criminal proceeding and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of the law or acted in conscious disregard of its obligation. Because of its qasi-criminal character, the Court held that the element of mens rea or bona fides was to be imported which would justify the authority who was competent to impose the penalty to refuse to impose penalty even when the statute provided for a fixed minimum penalty on proof of default. 16. There is no question of imposition of penalty under the Scheme. What has been prescribed under Section. 67(2) is merely the consequence of the failure to comply with Section 67(1). There is as such no question of importing the doctrine of mens rea or exercising any discretion contrary to the provisions of Section 67(2).17. The submission of the assessees that this Court should not interfere under Article 136 of the Constitution in those cases where the Revenue is in appeal is unacceptable because the issue is purely one of law and given the divergent opinions of the different High Courts, it is an appropriate case where this Court should interfere and settle the difference finally. | 0[ds]8. We are of the view that the submissions of the Revenue must be accepted. A plain reading of the provisions of the Scheme would show that the tax payable under the Scheme "shall be paid: within the time specified is the general rule provided in Section 66, namely, payment prior to the making of a declaration, the exception to this general rule has been carved out by Section 67(1) which allows a declarant to file a declaration without paying the tax. This exception, however, is subject to two conditions; viz., (1) the payment of tax within three months from the date of the filing of the declaration together with (2) the payment of simple interest at the rate of 2% for every month or part of a month. The period of interest is to commence from the date of filing the declaration and shall end with the date of payment of tax. It may be noted that under Section 67(1) not only must these two conditions be fulfilled within the period of three months but proof of such payment must also be filed within the same period.9. The use of the word "shall" be a Statute, ordinarily speaking, means that the statutory provision is mandatory. It is construed as such unless there is something in the context in which the word is used which would justify a departure from this meaning. There is nothing in the language of the provisions of the Scheme which would justify such a departure. On the other hand the provisions of Section 67(2) make it abundantly clear that if the declarant fails to pay the tax within the period of three months as specified, the declaration filed shall be deemed never to have been made under the Scheme. In the words the consequences of non compliance with the provisions of Section 67(1) relating to the payment have been provided. It is well settled that when consequences of the failure to comply with the prescribed requirement is provided by the state itself, there can be no manner of doubt that such statutory requirement must be interpreted asBesides the scheme has conferred a benefit on those who had not disclosed their income earlier by affording them protection against the possible legal consequences of such non disclosure under the provisions of the Income Tax Act. Where the assessees seeks to claim the benefit under the statutory scheme they are bound to comply strictly with the conditions under which the benefit is granted. There is no scope for the application of any equitable consideration when the statutory provisions of the Scheme are stated in such plain language.11. Seen from the angle of the Designated authority, which is created under the Scheme, it clear that the authority cannot act beyond the provisions of the Scheme itself. The power to accept payment under the Scheme has been prescribed by the statute. There is no scope for the Revenue Authorities to imply a provision not specifically provided for which would in any way modify the explicit terms of the Scheme.In none of the decisions of the High Courts which have held that the time prescribed under Section 67(1) was not rigid has any legal basis been relied on, the decision to extend the time appears to have been arrived at on consideration of equity. This approach, in our opinion, was incorrect, as the court had no power to act beyond the terms of the Statutory Scheme under which benefits had been granted to the assessee. By so holding we make it clear we do not intend to reopen those decisions which have become final in favour of the assessees. It may also be noted that in one of such decisions, the Revenue had sought to prefer an appeal before the Court by way of a special leave petition which was dismissed in limine. It needs hardly to be stated that such dismissal would not operate as confirmation of the reasoning in the decision sought to be appealed against, nor does such dismissal by itself operate as an argument in favour of the assessee and against the Revenue.There is no question of imposition of penalty under the Scheme. What has been prescribed under Section. 67(2) is merely the consequence of the failure to comply with Section 67(1). There is as such no question of importing the doctrine of mens rea or exercising any discretion contrary to the provisions of Section 67(2).17. The submission of the assessees that this Court should not interfere under Article 136 of the Constitution in those cases where the Revenue is in appeal is unacceptable because the issue is purely one of law and given the divergent opinions of the different High Courts, it is an appropriate case where this Court should interfere and settle the difference finally. | 0 | 3,242 | 884 | ### 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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itself, there can be no manner of doubt that such statutory requirement must be interpreted as mandatory (See: Maqbool Ahmad and Ors. v. Onkar Pratap Narayan Singh AIR 1935 PC, 85, 88). 10. Besides the scheme has conferred a benefit on those who had not disclosed their income earlier by affording them protection against the possible legal consequences of such non disclosure under the provisions of the Income Tax Act. Where the assessees seeks to claim the benefit under the statutory scheme they are bound to comply strictly with the conditions under which the benefit is granted. There is no scope for the application of any equitable consideration when the statutory provisions of the Scheme are stated in such plain language.11. Seen from the angle of the Designated authority, which is created under the Scheme, it clear that the authority cannot act beyond the provisions of the Scheme itself. The power to accept payment under the Scheme has been prescribed by the statute. There is no scope for the Revenue Authorities to imply a provision not specifically provided for which would in any way modify the explicit terms of the Scheme. 12. In the decision in Laxmi Mittals case the High Court had relied upon a circular issued by the Central Board of Direct Taxes under Section 119(2)(b) of the Income Tax Act. 1961. The circular has not been brought on record. Assuming that the High Courts reproduction of the contents is incorrect, all that the circular said was that the date for calculating interest would be 90 days from the date of declaration and if the 90th day happens to be a Bank holiday, payment on the 91st day being, the next working day, would be valid. This circular certainly does not mean that the Board had thereby empowered the Commissioner under Section 119(2)(b) to extend the period for the making of payment on sufficient cause being shown. All that the circular does is state what is provided in Section 10 of the General Clauses Act, 1897 and Section 4 of the Limitation Act, 1963. It is a general rule of interpretation and not an order empowering the Commissioner. In any event, it is doubtful whether the Board could have empowered the Commissioner to extend the time fixed for Sections 66 and 67 of the Scheme under Section 119(2)(b) of the Income Tax Act, 1961 given the wording of the Scheme and the fact that the Scheme does not form part of the Income Tax Act, 1961 at all. 13. In none of the decisions of the High Courts which have held that the time prescribed under Section 67(1) was not rigid has any legal basis been relied on, the decision to extend the time appears to have been arrived at on consideration of equity. This approach, in our opinion, was incorrect, as the court had no power to act beyond the terms of the Statutory Scheme under which benefits had been granted to the assessee. By so holding we make it clear we do not intend to reopen those decisions which have become final in favour of the assessees. It may also be noted that in one of such decisions, the Revenue had sought to prefer an appeal before the Court by way of a special leave petition which was dismissed in limine. It needs hardly to be stated that such dismissal would not operate as confirmation of the reasoning in the decision sought to be appealed against, nor does such dismissal by itself operate as an argument in favour of the assessee and against the Revenue. 14. The decision of this Court in Union of India and Ors. v. Kaumudini Narayan Dalal and Anr. (Supra) and Union of India v. Satish Panalal Shah (Supra) do not, as contended by the assessees, hold that the Revenue can never challenge an interpretation which they have not chosen to do so earlier. First, it appears to us that the principle appears to be limited to decisions of the jurisdictional High Court. Additionally, the decisions make it clear that given "just cause", the Department could challenge the interpretation subsequently. We accept the submission of the Revenue that in this case, decisions of other High Courts holding to the contrary as well as the subsequent conflicting decision of the Punjab and Haryana High Court itself would come within the phrase "just cause". 15. The submissions of the assessees that this Court can dilute the rigour of Section 67(2) on the basis of the ratio in M/s. Hindustan Steel Ltd. v. State of Orissa 1969 (2) SCC 627 is unacceptable. That was a case which dealt with the imposition of a minimum penalty for failure to carry out a statutory obligation. The Court held that such an order imposing penalty is the result of a quasi criminal proceeding and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of the law or acted in conscious disregard of its obligation. Because of its qasi-criminal character, the Court held that the element of mens rea or bona fides was to be imported which would justify the authority who was competent to impose the penalty to refuse to impose penalty even when the statute provided for a fixed minimum penalty on proof of default. 16. There is no question of imposition of penalty under the Scheme. What has been prescribed under Section. 67(2) is merely the consequence of the failure to comply with Section 67(1). There is as such no question of importing the doctrine of mens rea or exercising any discretion contrary to the provisions of Section 67(2).17. The submission of the assessees that this Court should not interfere under Article 136 of the Constitution in those cases where the Revenue is in appeal is unacceptable because the issue is purely one of law and given the divergent opinions of the different High Courts, it is an appropriate case where this Court should interfere and settle the difference finally.
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8. We are of the view that the submissions of the Revenue must be accepted. A plain reading of the provisions of the Scheme would show that the tax payable under the Scheme "shall be paid: within the time specified is the general rule provided in Section 66, namely, payment prior to the making of a declaration, the exception to this general rule has been carved out by Section 67(1) which allows a declarant to file a declaration without paying the tax. This exception, however, is subject to two conditions; viz., (1) the payment of tax within three months from the date of the filing of the declaration together with (2) the payment of simple interest at the rate of 2% for every month or part of a month. The period of interest is to commence from the date of filing the declaration and shall end with the date of payment of tax. It may be noted that under Section 67(1) not only must these two conditions be fulfilled within the period of three months but proof of such payment must also be filed within the same period.9. The use of the word "shall" be a Statute, ordinarily speaking, means that the statutory provision is mandatory. It is construed as such unless there is something in the context in which the word is used which would justify a departure from this meaning. There is nothing in the language of the provisions of the Scheme which would justify such a departure. On the other hand the provisions of Section 67(2) make it abundantly clear that if the declarant fails to pay the tax within the period of three months as specified, the declaration filed shall be deemed never to have been made under the Scheme. In the words the consequences of non compliance with the provisions of Section 67(1) relating to the payment have been provided. It is well settled that when consequences of the failure to comply with the prescribed requirement is provided by the state itself, there can be no manner of doubt that such statutory requirement must be interpreted asBesides the scheme has conferred a benefit on those who had not disclosed their income earlier by affording them protection against the possible legal consequences of such non disclosure under the provisions of the Income Tax Act. Where the assessees seeks to claim the benefit under the statutory scheme they are bound to comply strictly with the conditions under which the benefit is granted. There is no scope for the application of any equitable consideration when the statutory provisions of the Scheme are stated in such plain language.11. Seen from the angle of the Designated authority, which is created under the Scheme, it clear that the authority cannot act beyond the provisions of the Scheme itself. The power to accept payment under the Scheme has been prescribed by the statute. There is no scope for the Revenue Authorities to imply a provision not specifically provided for which would in any way modify the explicit terms of the Scheme.In none of the decisions of the High Courts which have held that the time prescribed under Section 67(1) was not rigid has any legal basis been relied on, the decision to extend the time appears to have been arrived at on consideration of equity. This approach, in our opinion, was incorrect, as the court had no power to act beyond the terms of the Statutory Scheme under which benefits had been granted to the assessee. By so holding we make it clear we do not intend to reopen those decisions which have become final in favour of the assessees. It may also be noted that in one of such decisions, the Revenue had sought to prefer an appeal before the Court by way of a special leave petition which was dismissed in limine. It needs hardly to be stated that such dismissal would not operate as confirmation of the reasoning in the decision sought to be appealed against, nor does such dismissal by itself operate as an argument in favour of the assessee and against the Revenue.There is no question of imposition of penalty under the Scheme. What has been prescribed under Section. 67(2) is merely the consequence of the failure to comply with Section 67(1). There is as such no question of importing the doctrine of mens rea or exercising any discretion contrary to the provisions of Section 67(2).17. The submission of the assessees that this Court should not interfere under Article 136 of the Constitution in those cases where the Revenue is in appeal is unacceptable because the issue is purely one of law and given the divergent opinions of the different High Courts, it is an appropriate case where this Court should interfere and settle the difference finally.
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PRAVIN ELECTRICALS PVT. LTD Vs. GALAXY INFRA AND ENGINEERING PVT. LTD | S-16 attributed to M.G. Stephen, due to the reason that the model of both the sets of signatures are different, hence, technically not comparable. 23. Since, the CFSL did not express an opinion either way, it became incumbent upon the learned Single Judge to determine as to whether the Agreement dated 7th July, 2014 could have been entered into given the surrounding circumstances of the case. As Shri Divan rightly points out, there are no negotiations which lead upto the 7th July, 2014 Agreement that are on record. Secondly, negotiations that take place take place only after 7th July, 2014 in which a draft agreement is deliberated upon between the same parties. It would stretch incredulity to state that on the same subject matter negotiations and a draft agreement would be spoken about after a final signed agreement has been agreed upon between the parties. Secondly, he rightly points out that the Agreement is notarized in Faridabad, Haryana, with no explanation worth the name when a contract is to be executed in Bihar by one of the parties whose registered office is in Bihar and the other party whose registered office is in Mumbai. Thirdly, the Notary who is said to have notarized the Agreement was not licensed to do so the same, his license having expired earlier, a fact that is accepted even by the Respondents. 24. Even otherwise, some of the learned Single Judges conclusions are plainly incorrect and against the record. The learned Single Judge holds: 39. ….. Admittedly on 22.09.2014, LOI was awarded to the respondent and on the petitioner raising an invoice for Rs.25 Lakhs on 27.09.2014, respondent actually made payment on 29.09.2014. Counsel for the petitioner has also shown the email dated 27.09.2014 whereby the respondent had asked the petitioner to raise the invoice on its letter head….. 25. This is plainly incorrect in view of the correspondence and pleadings between the parties, as an invoice was raised on Process, Process making payment on 29th September, 2014 and not the Appellant. Equally, the finding that a draft Consultancy Agreement was sent on 15th July, 2014 containing an arbitration clause, parties being ad idem regarding submission of the disputes to arbitration is also plainly incorrect in view of the fact that on the same day, an email was sent back in which various terms were disputed, there being no concluded contract between the parties. Also, the finding that Process was a sub-contractor of the Respondent, is contrary to the pleadings between the parties which, as we have seen, had ranged from Process being a joint venture partner of the Appellant to Process having common Directors with the Appellant, and to Process thereafter being described as the lead partner. Sub-contractor-ship is not pleaded at all by the Respondent, the aforesaid arising only from written submissions made before the learned Single Judge. 26. The allegation that the Consultancy Agreement of 7th July, 2014 had a signature that may not be that of Mr. M.G. Stephen was brushed aside stating that an arbitration agreement need not be signed by the parties. That is entirely besides the point. Mr. M.G. Stephen has sworn to an affidavit filed before the High Court that the signatures appearing on the 7th July, 2014 agreement are not his signatures, as a result of which the Appellant cannot be said to have entered into an agreement at all on 7th July, 2014. Again, in paragraph 45, the learned Single Judges finding that there exists an arbitration agreement between the parties as contained in the draft agreement exchanged by email dated 7th July, 2014, is incorrect for two reasons. The draft agreement sent by email was exchanged on 15th July, 2014 and not on 7th July, 2014. Secondly, the email in reply to the email of 15th July, 2014 shows that there was no concluded contract between the parties. Also, the pleading with which the parties went to Court was that there was a concluded contract between the parties on 7th July, 2014. There was no pleading worthy of the name that on 15th July, 2014, a draft agreement was exchanged between the parties, as a result of which a concluded contract emanated therefrom. 27. The facts of this case remind one of Alice in Wonderland. In Chapter II of Lewis Carolls classic, after little Alice had gone down the Rabbit hole, she exclaims Curiouser and curiouser! and Lewis Caroll states (she was so much surprised, that for the moment she quite forgot how to speak good English). This is a case which eminently cries for the truth to out between the parties through documentary evidence and cross-examination. Large pieces of the jigsaw puzzle that forms the documentary evidence between the parties in this case remained unfilled. The emails dated 22nd July, 2014 and 25th July, 2014 produced here for the first time as well as certain correspondence between SBPDCL and the Respondent do show that there is some dealing between the Appellant and the Respondent qua a tender floated by SBPDCL, but that is not sufficient to conclude that there is a concluded contract between the parties, which contains an arbitration clause. Given the inconclusive nature of the finding by CFSL together with the signing of the agreement in Haryana by parties whose registered offices are at Bombay and Bihar qua works to be executed in Bihar; given the fact that the Notary who signed the agreement was not authorised to do so and various other conundrums that arise on the facts of this case, it is unsafe to conclude, one way or the other, that an arbitration agreement exists between the parties. The prima facie review spoken of in Vidya Dhrolia (supra) can lead to only one conclusion on the facts of this case - that a deeper consideration of whether an arbitration agreement exists between the parties must be left to an Arbitrator who is to examine the documentary evidence produced before him in detail after witnesses are cross-examined on the same. | 1[ds]12. The need for reference to any other case law is obviated by a recent Three-Judge Bench judgment in Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1. This Three-Judge Bench judgment arose out of a reference made to 3 learned Judges in Vidya Drolia v. Durga Trading Corporation, (2019) 20 SCC 406. Sanjiv Khanna, J. speaking for the Court set out the question that arose before the Court as follows:1. This judgment decides the reference to three Judges made vide order dated 28-2-2019 in Vidya Drolia v. Durga Trading Corpn., (2019) 20 SCC 406 , as it doubts the legal ratio expressed in Himangni Enterprises v. Kamaljeet Singh Ahluwalia, (2017) 10 SCC 706 that landlord-tenant disputes governed by the provisions of the Transfer of Property Act, 1882, are not arbitrable as this would be contrary to public policy.2. A deeper consideration of the order of reference reveals that the issues required to be answered relate to two aspects that are distinct and yet interconnected, namely:2.1. (i) Meaning of non-arbitrability and when the subject-matter of the dispute is not capable of being resolved through arbitration.2.2. (ii) The conundrum — who decides — whether the court at the reference stage or the Arbitral Tribunal in the arbitration proceedings would decide the question of non-arbitrability.2.3. The second aspect also relates to the scope and ambit of jurisdiction of the court at the referral stage when an objection of non-arbitrability is raised to an application under Section 8 or 11 of the Arbitration and Conciliation Act, 1996 (for short the Arbitration Act).13. The Bench then went into the Law Commissions 246th Report as follows:124. In order to appreciate the effect of the amendments made by Act 3 of 2016, it would be appropriate to refer to the Law Commissions 246th Report which had given reasons for amendments to Sections 8 and 11 of the Arbitration Act, including insertion of sub-section (6-A) to Section 11. The said reasons read as under:24. Two further sets of amendments have been proposed in this context. First, it is observed that a lot of time is spent for appointment of arbitrators at the very threshold of arbitration proceedings as applications under Section 11 are kept pending for many years. In this context, the Commission has proposed a few amendments. The Commission has proposed changing the existing scheme of the power of appointment being vested in the Chief Justice to the High Court and the Supreme Court and has expressly clarified that delegation of the power of appointment (as opposed to a finding regarding the existence/nullity of the arbitration agreement) shall not be regarded as a judicial act. This would rationalise the law and provide greater incentive for the High Court and/or Supreme Court to delegate the power of appointment (being a non-judicial act) to specialised, external persons or institutions. The Commission has further recommended an amendment to Section 11(7) so that decisions of the High Court (regarding existence/nullity of the arbitration agreement) are final where an arbitrator has been appointed, and as such are non-appealable. The Commission further proposes the addition of Section 11(13) which requires the Court to make an endeavour to dispose of the matter within sixty days from the service of notice on the opposite party.The Law Commissions Report specifically refers to the decision of this Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., (2005) 7 SCC 234 , a decision relating to transnational arbitration covered by the New York Convention.14. Dealing with prima facie examination under Section 8, as amended, the Court then held:134. Prima facie examination is not full review but a primary first review to weed out manifestly and ex facie non-existent and invalid arbitration agreements and non-arbitrable disputes. The prima facie review at the reference stage is to cut the deadwood and trim off the side branches in straightforward cases where dismissal is barefaced and pellucid and when on the facts and law the litigation must stop at the first stage. Only when the court is certain that no valid arbitration agreement exists or the disputes/subject-matter are not arbitrable, the application under Section 8 would be rejected. At this stage, the court should not get lost in thickets and decide debatable questions of facts. Referral proceedings are preliminary and summary and not a mini trial. This necessarily reflects on the nature of the jurisdiction exercised by the court and in this context, the observations of B.N. Srikrishna, J. of plainly arguable case in Shin-Etsu Chemical Co. Ltd. are of importance and relevance. Similar views are expressed by this Court in Vimal Kishor Shah v. Jayesh Dinesh Shah, (2016) 8 SCC wherein the test applied at the pre-arbitration stage was whether there is a good arguable case for the existence of an arbitration agreement.15. The parameters of review under Sections 8 and 11 were then laid down thus:138. In the Indian context, we would respectfully adopt the three categories in Boghara Polyfab (P) Ltd. The first category of issues, namely, whether the party has approached the appropriate High Court, whether there is an arbitration agreement and whether the party who has applied for reference is party to such agreement would be subject to more thorough examination in comparison to the second and third categories/issues which are presumptively, save in exceptional cases, for the arbitrator to decide. In the first category, we would add and include the question or issue relating to whether the cause of action relates to action in personam or rem; whether the subject-matter of the dispute affects third-party rights, have erga omnes effect, requires centralised adjudication; whether the subject-matter relates to inalienable sovereign and public interest functions of the State; and whether the subject-matter of dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s). Such questions arise rarely and, when they arise, are on most occasions questions of law. On the other hand, issues relating to contract formation, existence, validity and non- arbitrability would be connected and intertwined with the issues underlying the merits of the respective disputes/claims. They would be factual and disputed and for the Arbitral Tribunal to decide.139. We would not like to be too prescriptive, albeit observe that the court may for legitimate reasons, to prevent wastage of public and private resources, can exercise judicial discretion to conduct an intense yet summary prima facie review while remaining conscious that it is to assist the arbitration procedure and not usurp jurisdiction of the Arbitral Tribunal. Undertaking a detailed full review or a long-drawn review at the referral stage would obstruct and cause delay undermining the integrity and efficacy of arbitration as a dispute resolution mechanism. Conversely, if the court becomes too reluctant to intervene, it may undermine effectiveness of both the arbitration and the court. There are certain cases where the prima facie examination may require a deeper consideration. The courts challenge is to find the right amount of and the context when it would examine the prima facie case or exercise restraint. The legal order needs a right balance between avoiding arbitration obstructing tactics at referral stage and protecting parties from being forced to arbitrate when the matter is clearly non-arbitrable. [ Ozlem Susler, The English Approach to Competence-Competence Pepperdine Dispute Resolution Law Journal, 2013, Vol. 13.]140. Accordingly, when it appears that prima facie review would be inconclusive, or on consideration inadequate as it requires detailed examination, the matter should be left for final determination by the Arbitral Tribunal selected by the parties by consent. The underlying rationale being not to delay or defer and to discourage parties from using referral proceeding as a ruse to delay and obstruct. In such cases a full review by the courts at this stage would encroach on the jurisdiction of the Arbitral Tribunal and violate the legislative scheme allocating jurisdiction between the courts and the Arbitral Tribunal. Centralisation of litigation with the Arbitral Tribunal as the primary and first adjudicator is beneficent as it helps in quicker and efficient resolution of disputes.16. The Court then examined the meaning of the expression existence which occurs in Section 11(6A) and summed up its discussion as follows:146. We now proceed to examine the question, whether the word existence in Section 11 merely refers to contract formation (whether there is an arbitration agreement) and excludes the question of enforcement (validity) and therefore the latter falls outside the jurisdiction of the court at the referral stage. On jurisprudentially and textualism it is possible to differentiate between existence of an arbitration agreement and validity of an arbitration agreement. Such interpretation can draw support from the plain meaning of the word existence. However, it is equally possible, jurisprudentially and on contextualism, to hold that an agreement has no existence if it is not enforceable and not binding. Existence of an arbitration agreement presupposes a valid agreement which would be enforced by the court by relegating the parties to arbitration. Legalistic and plain meaning interpretation would be contrary to the contextual background including the definition clause and would result in unpalatable consequences. A reasonable and just interpretation of existence requires understanding the context, the purpose and the relevant legal norms applicable for a binding and enforceable arbitration agreement. An agreement evidenced in writing has no meaning unless the parties can be compelled to adhere and abide by the terms. A party cannot sue and claim rights based on an unenforceable document. Thus, there are good reasons to hold that an arbitration agreement exists only when it is valid and legal. A void and unenforceable understanding is no agreement to do anything. Existence of an arbitration agreement means an arbitration agreement that meets and satisfies the statutory requirements of both the Arbitration Act and the Contract Act and when it is enforceable in law.147. We would proceed to elaborate and give further reasons:147.1. In Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd., (2019) 9 SCC 209 , this Court had examined the question of stamp duty in an underlying contract with an arbitration clause and in the context had drawn a distinction between the first and second part of Section 7(2) of the Arbitration Act, albeit the observations made and quoted above with reference to existence and validity of the arbitration agreement being apposite and extremely important, we would repeat the same by reproducing para 29 thereof: (SCC p. 238)29. This judgment in United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd., (2018) 17 SCC 607 is important in that what was specifically under consideration was an arbitration clause which would get activated only if an insurer admits or accepts liability. Since on facts it was found that the insurer repudiated the claim, though an arbitration clause did exist, so to speak, in the policy, it would not exist in law, as was held in that judgment, when one important fact is introduced, namely, that the insurer has not admitted or accepted liability. Likewise, in the facts of the present case, it is clear that the arbitration clause that is contained in the sub- contract would not exist as a matter of law until the sub-contract is duly stamped, as has been held by us above. The argument that Section 11(6-A) deals with existence, as opposed to Section 8, Section 16 and Section 45, which deal with validity of an arbitration agreement is answered by this Courts understanding of the expression existence in Hyundai Engg. case, as followed by us.Existence and validity are intertwined, and arbitration agreement does not exist if it is illegal or does not satisfy mandatory legal requirements. Invalid agreement is no agreement.147.2. The court at the reference stage exercises judicial powers. Examination, as an ordinary expression in common parlance, refers to an act of looking or considering something carefully in order to discover something (as per Cambridge Dictionary). It requires the person to inspect closely, to test the condition of, or to inquire into carefully (as per Merriam-Webster Dictionary). It would be rather odd for the court to hold and say that the arbitration agreement exists, though ex facie and manifestly the arbitration agreement is invalid in law and the dispute in question is non-arbitrable. The court is not powerless and would not act beyond jurisdiction, if it rejects an application for reference, when the arbitration clause is admittedly or without doubt is with a minor, lunatic or the only claim seeks a probate of a will.147.3. Most scholars and jurists accept and agree that the existence and validity of an arbitration agreement are the same. Even Stavros Brekoulakis accepts that validity, in terms of substantive and formal validity, are questions of contract and hence for the court to examine.147.4. Most jurisdictions accept and require prima facie review by the court on non-arbitrability aspects at the referral stage.147.5. Sections 8 and 11 of the Arbitration Act are complementary provisions as was held in Patel Engg. Ltd. The object and purpose behind the two provisions is identical to compel and force parties to abide by their contractual understanding. This being so, the two provisions should be read as laying down similar standard and not as laying down different and separate parameters. Section 11 does not prescribe any standard of judicial review by the court for determining whether an arbitration agreement is in existence. Section 8 states that the judicial review at the stage of reference is prima facie and not final. Prima facie standard equally applies when the power of judicial review is exercised by the court under Section 11 of the Arbitration Act. Therefore, we can read the mandate of valid arbitration agreement in Section 8 into mandate of Section 11, that is, existence of an arbitration agreement.147.6. Exercise of power of prima facie judicial review of existence as including validity is justified as a court is the first forum that examines and decides the request for the referral. Absolute hands off approach would be counterproductive and harm arbitration, as an alternative dispute resolution mechanism. Limited, yet effective intervention is acceptable as it does not obstruct but effectuates arbitration.147.7. Exercise of the limited prima facie review does not in any way interfere with the principle of competence-competence and separation as to obstruct arbitration proceedings but ensures that vexatious and frivolous matters get over at the initial stage.147.8. Exercise of prima facie power of judicial review as to the validity of the arbitration agreement would save costs and check harassment of objecting parties when there is clearly no justification and a good reason not to accept plea of non-arbitrability. In Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470 , this Court has observed: (SCC p. 642, para 191)191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. One needs to keep in mind that in the process of litigation, there is an innocent sufferer on the other side of every irresponsible and senseless claim. He suffers long-drawn anxious periods of nervousness and restlessness, whilst the litigation is pending without any fault on his part. He pays for the litigation from out of his savings (or out of his borrowings) worrying that the other side may trick him into defeat for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for what he has lost for no fault? The suggestion to the legislature is that a litigant who has succeeded must be compensated by the one who has lost. The suggestion to the legislature is to formulate a mechanism that anyone who initiates and continues a litigation senselessly pays for the same. It is suggested that the legislature should consider the introduction of a Code of Compulsory Costs.147.9. Even in Duro Felguera, S.A. v. Gangavaram Port Ltd., (2017) 9 SCC 729 , Kurian Joseph, J., in para 52, had referred to Section 7(5) and thereafter in para 53 referred to a judgment of this Court in M.R. Engineers & Contractors (P) Ltd. v. Som Datt Builders Ltd., (2009) 7 SCC 696 to observe that the analysis in the said case supports the final conclusion that the memorandum of understanding in the said case did not incorporate an arbitration clause. Thereafter, reference was specifically made to SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 and National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 to observe that the legislative policy is essential to minimise courts interference at the pre-arbitral stage and this was the intention of sub-section (6) to Section 11 of the Arbitration Act. Para 48 in Duro Felguera specifically states that the resolution has to exist in the arbitration agreement, and it is for the court to see if the agreement contains a clause which provides for arbitration of disputes which have arisen between the parties. Para 59 is more restrictive and requires the court to see whether an arbitration agreement exists — nothing more, nothing less. Read with the other findings, it would be appropriate to read the two paragraphs as laying down the legal ratio that the court is required to see if the underlying contract contains an arbitration clause for arbitration of the disputes which have arisen between the parties — nothing more, nothing less. Reference to decisions in Patel Engg. Ltd. and Boghara Polyfab (P) Ltd. was to highlight that at the reference stage, post the amendments vide Act 3 of 2016, the court would not go into and finally decide different aspects that were highlighted in the two decisions.147.10. In addition to Garware Wall Ropes Ltd. case, this Court in Narbheram Power & Steel (P) Ltd. [Oriental Insurance Co. Ltd. v. Narbheram Power & Steel (P) Ltd., (2018) 6 SCC 534 ] and Hyundai Engg. & Construction Co. Ltd. [United India Insurance Co. Ltd. v. Hyundai Engg. & Construction Co. Ltd., (2018) 17 SCC 607 ] , both decisions of three Judges, has rejected the application for reference in the insurance contracts holding that the claim was beyond and not covered by the arbitration agreement. The Court felt that the legal position was beyond doubt as the scope of the arbitration clause was fully covered by the dictum in Vulcan Insurance Co. Ltd. [Vulcan Insurance Co. Ltd. v. Maharaj Singh, (1976) 1 SCC 943 ] Similarly, in PSA Mumbai Investments Pte. Ltd. [PSA Mumbai Investments Pte. Ltd. v. Jawaharlal Nehru Port Trust, (2018) 10 SCC 525 ] , this Court at the referral stage came to the conclusion that the arbitration clause would not be applicable and govern the disputes. Accordingly, the reference to the Arbitral Tribunal was set aside leaving the respondent to pursue its claim before an appropriate forum.147.11. The interpretation appropriately balances the allocation of the decision-making authority between the court at the referral stage and the arbitrators primary jurisdiction to decide disputes on merits. The court as the judicial forum of the first instance can exercise prima facie test jurisdiction to screen and knock down ex facie meritless, frivolous and dishonest litigation. Limited jurisdiction of the courts ensures expeditious, alacritous and efficient disposal when required at the referral stage.17. The Bench finally concluded:153. Accordingly, we hold that the expression existence of an arbitration agreement in Section 11 of the Arbitration Act, would include aspect of validity of an arbitration agreement, albeit the court at the referral stage would apply the prima facie test on the basis of principles set out in this judgment. In cases of debatable and disputable facts, and good reasonable arguable case, etc., the court would force the parties to abide by the arbitration agreement as the Arbitral Tribunal has primary jurisdiction and authority to decide the disputes including the question of jurisdiction and non- arbitrability.154. Discussion under the heading Who Decides Arbitrability? can be crystallised as under:154.1. Ratio of the decision in Patel Engg. Ltd. on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016 (with retrospective effect from 23-10-2015) and even post the amendments vide Act 33 of 2019 (with effect from 9-8-2019), is no longer applicable.154.2. Scope of judicial review and jurisdiction of the court under Sections 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.154.3. The general rule and principle, in view of the legislative mandate clear from Act 3 of 2016 and Act 33 of 2019, and the principle of severability and competence-competence, is that the Arbitral Tribunal is the preferred first authority to determine and decide all questions of non-arbitrability. The court has been conferred power of second look on aspects of non-arbitrability post the award in terms of sub-clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-clause (i) of Section 34(2)(b) of the Arbitration Act.154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non- existent, invalid or the disputes are non-arbitrable, though the nature and facet of non-arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably non-arbitrable and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism.155. Reference is, accordingly, answered.18. Ramana, J. in a separate concurring opinion, after referring to the case law, summed up his conclusions as follows:244. Before we part, the conclusions reached, with respect to Question 1, are:244.1. Sections 8 and 11 of the Act have the same ambit with respect to judicial interference.244.2. Usually, subject-matter arbitrability cannot be decided at the stage of Section 8 or 11 of the Act, unless it is a clear case of deadwood.244.3. The court, under Sections 8 and 11, has to refer a matter to arbitration or to appoint an arbitrator, as the case may be, unless a party has established a prima facie (summary findings) case of non-existence of valid arbitration agreement, by summarily portraying a strong case that he is entitled to such a finding.244.4. The court should refer a matter if the validity of the arbitration agreement cannot be determined on a prima facie basis, as laid down above i.e. when in doubt, do refer.244.5. The scope of the court to examine the prima facie validity of an arbitration agreement includes only:244.5.1. Whether the arbitration agreement was in writing? or244.5.2. Whether the arbitration agreement was contained in exchange of letters, telecommunication, etc.?244.5.3. Whether the core contractual ingredients qua the arbitration agreement were fulfilled?244.5.4. On rare occasions, whether the subject- matter of dispute is arbitrable?20. It will be seen that when Parliament enacted the 2015 amendment pursuant to the Law Commission Report, it followed the Scheme of the Law Commissions Report qua Section 8 and Section 37 by enacting the words ….. unless it finds that prima facie no valid arbitration agreement exists…… in Section 8(1) and the insertion of sub-clause (a) in Section 37(1) providing an appeal in an order made under Section 8, which refuses to refer parties to arbitration. However, so far as Section 11(6) and Section 11(6A) are concerned, what was recommended by the Law Commission was not incorporated. Section 11(6A) merely confines examination of the Court to the existence of an arbitration agreement. Section 11(7) was retained, by which no appeal could be filed under an order made under Section 11(6) read with Section 11(6A), whether the Courts determination led to a finding that the arbitration agreement existed or did not exist on the facts of a given case. Concomitantly, no amendment was made to Section 37(1), as recommended by the Law Commission.21. However, by a process of judicial interpretation, Vidya Drolia (supra) has now read the prima facie test into Section 11(6A) so as to bring the provisions of Sections 8(1) and 11(6) r/w 11(6A) on par. Considering that Section 11(7) and Section 37 have not been amended, an anomaly thus arises. Whereas in cases decided under Section 8, a refusal to refer parties to arbitration is appealable under Section 37(1)(a), a similar refusal to refer parties to arbitration under Section 11(6) read with Sections 6(A) and 7 is not appealable. In the light of what has been decided in Vidya Drolia (supra), Parliament may need to have a re-look at Section 11(7) and Section 37 so that orders made under Sections 8 and 11 are brought on par qua appealability as well.23. Since, the CFSL did not express an opinion either way, it became incumbent upon the learned Single Judge to determine as to whether the Agreement dated 7th July, 2014 could have been entered into given the surrounding circumstances of the case. As Shri Divan rightly points out, there are no negotiations which lead upto the 7th July, 2014 Agreement that are on record. Secondly, negotiations that take place take place only after 7th July, 2014 in which a draft agreement is deliberated upon between the same parties. It would stretch incredulity to state that on the same subject matter negotiations and a draft agreement would be spoken about after a final signed agreement has been agreed upon between the parties. Secondly, he rightly points out that the Agreement is notarized in Faridabad, Haryana, with no explanation worth the name when a contract is to be executed in Bihar by one of the parties whose registered office is in Bihar and the other party whose registered office is in Mumbai. Thirdly, the Notary who is said to have notarized the Agreement was not licensed to do so the same, his license having expired earlier, a fact that is accepted even by the Respondents.24. Even otherwise, some of the learned Single Judges conclusions are plainly incorrect and against the record. The learned Single Judge holds:39. ….. Admittedly on 22.09.2014, LOI was awarded to the respondent and on the petitioner raising an invoice for Rs.25 Lakhs on 27.09.2014, respondent actually made payment on 29.09.2014. Counsel for the petitioner has also shown the email dated 27.09.2014 whereby the respondent had asked the petitioner to raise the invoice on its letter head…..25. This is plainly incorrect in view of the correspondence and pleadings between the parties, as an invoice was raised on Process, Process making payment on 29th September, 2014 and not the Appellant. Equally, the finding that a draft Consultancy Agreement was sent on 15th July, 2014 containing an arbitration clause, parties being ad idem regarding submission of the disputes to arbitration is also plainly incorrect in view of the fact that on the same day, an email was sent back in which various terms were disputed, there being no concluded contract between the parties. Also, the finding that Process was a sub-contractor of the Respondent, is contrary to the pleadings between the parties which, as we have seen, had ranged from Process being a joint venture partner of the Appellant to Process having common Directors with the Appellant, and to Process thereafter being described as the lead partner. Sub-contractor-ship is not pleaded at all by the Respondent, the aforesaid arising only from written submissions made before the learned Single Judge.26. The allegation that the Consultancy Agreement of 7th July, 2014 had a signature that may not be that of Mr. M.G. Stephen was brushed aside stating that an arbitration agreement need not be signed by the parties. That is entirely besides the point. Mr. M.G. Stephen has sworn to an affidavit filed before the High Court that the signatures appearing on the 7th July, 2014 agreement are not his signatures, as a result of which the Appellant cannot be said to have entered into an agreement at all on 7th July, 2014. Again, in paragraph 45, the learned Single Judges finding that there exists an arbitration agreement between the parties as contained in the draft agreement exchanged by email dated 7th July, 2014, is incorrect for two reasons. The draft agreement sent by email was exchanged on 15th July, 2014 and not on 7th July, 2014. Secondly, the email in reply to the email of 15th July, 2014 shows that there was no concluded contract between the parties. Also, the pleading with which the parties went to Court was that there was a concluded contract between the parties on 7th July, 2014. There was no pleading worthy of the name that on 15th July, 2014, a draft agreement was exchanged between the parties, as a result of which a concluded contract emanated therefrom.27. The facts of this case remind one of Alice in Wonderland. In Chapter II of Lewis Carolls classic, after little Alice had gone down the Rabbit hole, she exclaims Curiouser and curiouser! and Lewis Caroll states (she was so much surprised, that for the moment she quite forgot how to speak good English). This is a case which eminently cries for the truth to out between the parties through documentary evidence and cross-examination. Large pieces of the jigsaw puzzle that forms the documentary evidence between the parties in this case remained unfilled. The emails dated 22nd July, 2014 and 25th July, 2014 produced here for the first time as well as certain correspondence between SBPDCL and the Respondent do show that there is some dealing between the Appellant and the Respondent qua a tender floated by SBPDCL, but that is not sufficient to conclude that there is a concluded contract between the parties, which contains an arbitration clause. Given the inconclusive nature of the finding by CFSL together with the signing of the agreement in Haryana by parties whose registered offices are at Bombay and Bihar qua works to be executed in Bihar; given the fact that the Notary who signed the agreement was not authorised to do so and various other conundrums that arise on the facts of this case, it is unsafe to conclude, one way or the other, that an arbitration agreement exists between the parties. The prima facie review spoken of in Vidya Dhrolia (supra) can lead to only one conclusion on the facts of this case - that a deeper consideration of whether an arbitration agreement exists between the parties must be left to an Arbitrator who is to examine the documentary evidence produced before him in detail after witnesses are cross-examined on the same. | 1 | 13,401 | 5,810 | ### 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:
S-16 attributed to M.G. Stephen, due to the reason that the model of both the sets of signatures are different, hence, technically not comparable. 23. Since, the CFSL did not express an opinion either way, it became incumbent upon the learned Single Judge to determine as to whether the Agreement dated 7th July, 2014 could have been entered into given the surrounding circumstances of the case. As Shri Divan rightly points out, there are no negotiations which lead upto the 7th July, 2014 Agreement that are on record. Secondly, negotiations that take place take place only after 7th July, 2014 in which a draft agreement is deliberated upon between the same parties. It would stretch incredulity to state that on the same subject matter negotiations and a draft agreement would be spoken about after a final signed agreement has been agreed upon between the parties. Secondly, he rightly points out that the Agreement is notarized in Faridabad, Haryana, with no explanation worth the name when a contract is to be executed in Bihar by one of the parties whose registered office is in Bihar and the other party whose registered office is in Mumbai. Thirdly, the Notary who is said to have notarized the Agreement was not licensed to do so the same, his license having expired earlier, a fact that is accepted even by the Respondents. 24. Even otherwise, some of the learned Single Judges conclusions are plainly incorrect and against the record. The learned Single Judge holds: 39. ….. Admittedly on 22.09.2014, LOI was awarded to the respondent and on the petitioner raising an invoice for Rs.25 Lakhs on 27.09.2014, respondent actually made payment on 29.09.2014. Counsel for the petitioner has also shown the email dated 27.09.2014 whereby the respondent had asked the petitioner to raise the invoice on its letter head….. 25. This is plainly incorrect in view of the correspondence and pleadings between the parties, as an invoice was raised on Process, Process making payment on 29th September, 2014 and not the Appellant. Equally, the finding that a draft Consultancy Agreement was sent on 15th July, 2014 containing an arbitration clause, parties being ad idem regarding submission of the disputes to arbitration is also plainly incorrect in view of the fact that on the same day, an email was sent back in which various terms were disputed, there being no concluded contract between the parties. Also, the finding that Process was a sub-contractor of the Respondent, is contrary to the pleadings between the parties which, as we have seen, had ranged from Process being a joint venture partner of the Appellant to Process having common Directors with the Appellant, and to Process thereafter being described as the lead partner. Sub-contractor-ship is not pleaded at all by the Respondent, the aforesaid arising only from written submissions made before the learned Single Judge. 26. The allegation that the Consultancy Agreement of 7th July, 2014 had a signature that may not be that of Mr. M.G. Stephen was brushed aside stating that an arbitration agreement need not be signed by the parties. That is entirely besides the point. Mr. M.G. Stephen has sworn to an affidavit filed before the High Court that the signatures appearing on the 7th July, 2014 agreement are not his signatures, as a result of which the Appellant cannot be said to have entered into an agreement at all on 7th July, 2014. Again, in paragraph 45, the learned Single Judges finding that there exists an arbitration agreement between the parties as contained in the draft agreement exchanged by email dated 7th July, 2014, is incorrect for two reasons. The draft agreement sent by email was exchanged on 15th July, 2014 and not on 7th July, 2014. Secondly, the email in reply to the email of 15th July, 2014 shows that there was no concluded contract between the parties. Also, the pleading with which the parties went to Court was that there was a concluded contract between the parties on 7th July, 2014. There was no pleading worthy of the name that on 15th July, 2014, a draft agreement was exchanged between the parties, as a result of which a concluded contract emanated therefrom. 27. The facts of this case remind one of Alice in Wonderland. In Chapter II of Lewis Carolls classic, after little Alice had gone down the Rabbit hole, she exclaims Curiouser and curiouser! and Lewis Caroll states (she was so much surprised, that for the moment she quite forgot how to speak good English). This is a case which eminently cries for the truth to out between the parties through documentary evidence and cross-examination. Large pieces of the jigsaw puzzle that forms the documentary evidence between the parties in this case remained unfilled. The emails dated 22nd July, 2014 and 25th July, 2014 produced here for the first time as well as certain correspondence between SBPDCL and the Respondent do show that there is some dealing between the Appellant and the Respondent qua a tender floated by SBPDCL, but that is not sufficient to conclude that there is a concluded contract between the parties, which contains an arbitration clause. Given the inconclusive nature of the finding by CFSL together with the signing of the agreement in Haryana by parties whose registered offices are at Bombay and Bihar qua works to be executed in Bihar; given the fact that the Notary who signed the agreement was not authorised to do so and various other conundrums that arise on the facts of this case, it is unsafe to conclude, one way or the other, that an arbitration agreement exists between the parties. The prima facie review spoken of in Vidya Dhrolia (supra) can lead to only one conclusion on the facts of this case - that a deeper consideration of whether an arbitration agreement exists between the parties must be left to an Arbitrator who is to examine the documentary evidence produced before him in detail after witnesses are cross-examined on the same.
### Response:
1
### Explanation:
Parliament may need to have a re-look at Section 11(7) and Section 37 so that orders made under Sections 8 and 11 are brought on par qua appealability as well.23. Since, the CFSL did not express an opinion either way, it became incumbent upon the learned Single Judge to determine as to whether the Agreement dated 7th July, 2014 could have been entered into given the surrounding circumstances of the case. As Shri Divan rightly points out, there are no negotiations which lead upto the 7th July, 2014 Agreement that are on record. Secondly, negotiations that take place take place only after 7th July, 2014 in which a draft agreement is deliberated upon between the same parties. It would stretch incredulity to state that on the same subject matter negotiations and a draft agreement would be spoken about after a final signed agreement has been agreed upon between the parties. Secondly, he rightly points out that the Agreement is notarized in Faridabad, Haryana, with no explanation worth the name when a contract is to be executed in Bihar by one of the parties whose registered office is in Bihar and the other party whose registered office is in Mumbai. Thirdly, the Notary who is said to have notarized the Agreement was not licensed to do so the same, his license having expired earlier, a fact that is accepted even by the Respondents.24. Even otherwise, some of the learned Single Judges conclusions are plainly incorrect and against the record. The learned Single Judge holds:39. ….. Admittedly on 22.09.2014, LOI was awarded to the respondent and on the petitioner raising an invoice for Rs.25 Lakhs on 27.09.2014, respondent actually made payment on 29.09.2014. Counsel for the petitioner has also shown the email dated 27.09.2014 whereby the respondent had asked the petitioner to raise the invoice on its letter head…..25. This is plainly incorrect in view of the correspondence and pleadings between the parties, as an invoice was raised on Process, Process making payment on 29th September, 2014 and not the Appellant. Equally, the finding that a draft Consultancy Agreement was sent on 15th July, 2014 containing an arbitration clause, parties being ad idem regarding submission of the disputes to arbitration is also plainly incorrect in view of the fact that on the same day, an email was sent back in which various terms were disputed, there being no concluded contract between the parties. Also, the finding that Process was a sub-contractor of the Respondent, is contrary to the pleadings between the parties which, as we have seen, had ranged from Process being a joint venture partner of the Appellant to Process having common Directors with the Appellant, and to Process thereafter being described as the lead partner. Sub-contractor-ship is not pleaded at all by the Respondent, the aforesaid arising only from written submissions made before the learned Single Judge.26. The allegation that the Consultancy Agreement of 7th July, 2014 had a signature that may not be that of Mr. M.G. Stephen was brushed aside stating that an arbitration agreement need not be signed by the parties. That is entirely besides the point. Mr. M.G. Stephen has sworn to an affidavit filed before the High Court that the signatures appearing on the 7th July, 2014 agreement are not his signatures, as a result of which the Appellant cannot be said to have entered into an agreement at all on 7th July, 2014. Again, in paragraph 45, the learned Single Judges finding that there exists an arbitration agreement between the parties as contained in the draft agreement exchanged by email dated 7th July, 2014, is incorrect for two reasons. The draft agreement sent by email was exchanged on 15th July, 2014 and not on 7th July, 2014. Secondly, the email in reply to the email of 15th July, 2014 shows that there was no concluded contract between the parties. Also, the pleading with which the parties went to Court was that there was a concluded contract between the parties on 7th July, 2014. There was no pleading worthy of the name that on 15th July, 2014, a draft agreement was exchanged between the parties, as a result of which a concluded contract emanated therefrom.27. The facts of this case remind one of Alice in Wonderland. In Chapter II of Lewis Carolls classic, after little Alice had gone down the Rabbit hole, she exclaims Curiouser and curiouser! and Lewis Caroll states (she was so much surprised, that for the moment she quite forgot how to speak good English). This is a case which eminently cries for the truth to out between the parties through documentary evidence and cross-examination. Large pieces of the jigsaw puzzle that forms the documentary evidence between the parties in this case remained unfilled. The emails dated 22nd July, 2014 and 25th July, 2014 produced here for the first time as well as certain correspondence between SBPDCL and the Respondent do show that there is some dealing between the Appellant and the Respondent qua a tender floated by SBPDCL, but that is not sufficient to conclude that there is a concluded contract between the parties, which contains an arbitration clause. Given the inconclusive nature of the finding by CFSL together with the signing of the agreement in Haryana by parties whose registered offices are at Bombay and Bihar qua works to be executed in Bihar; given the fact that the Notary who signed the agreement was not authorised to do so and various other conundrums that arise on the facts of this case, it is unsafe to conclude, one way or the other, that an arbitration agreement exists between the parties. The prima facie review spoken of in Vidya Dhrolia (supra) can lead to only one conclusion on the facts of this case - that a deeper consideration of whether an arbitration agreement exists between the parties must be left to an Arbitrator who is to examine the documentary evidence produced before him in detail after witnesses are cross-examined on the same.
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District Red Cross Society Vs. Babita Arora | of closing down some of its branches or depots. Even if such closure may not amount to closure of business of the Company, the Tribunal has no power to issue orders directing a Company to reopen a closed depot or branch, if the Company, in fact, closes it down and that closure is genuine and real. The closure may be treated as stoppage of part of the activity or business of the Company. Such stoppage of part of a business is an act of management which is entirely in the discretion of the Company carrying on the business. .................... In Management of Hindustan Steel Ltd. v. The Workmen & Ors. 1973 Labour & Industrial Cases 461, it was held by this Court as under in para 10 of the reports: 10. The word undertaking as used in S.25FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondents. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. The question has indeed to be decided on the facts of each case. ......................... In workmen of the Straw Board Manufacturing Company Limited v. M/s Straw Board Manufacturing Company Limited (1974) 1 LLJ 499 , this Court laid down the test of closure of a unit by observing that the most important aspect in a case relating to closure is whether one unit has such componental relation that the closing of one must lead to the closing of the other or the one cannot reasonably exist without the other. Functional integrity will assume an added significance in the case of closure. 9. It appears that after the aforesaid decisions of the Supreme Court, the legislature by an amendment made in the year 1982 to the Industrial Disputes Act defined the word closure by adding Section 2(cc). Section 2(cc) of the Act reads as under: 2(cc). closure means the permanent closing down of a place of employment or part thereof. It is, therefore, clear that in order to attract Section 25FFF it is not necessary that the entire establishment of an employer should be closed. If a unit or part of an undertaking which has no functional integrity with other units is closed, it will amount to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v. Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87 , it has been observed that the closure need not be of the entire plant. A closure can also be of a part of the plant. In Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638 , it was held as under in para 21 of the report: 21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression as if used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing therefrom. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose. The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non-compliance of the provisions of Section 25F of the Act. 10. In view of the findings recorded above, the respondent would be entitled to compensation only in accordance with Section 25FFF of the Act and the award for reinstatement in service with back wages passed by the Tribunal which was affirmed by the High Court cannot be sustained and must be set aside. 11. The cases of other three respondents are exactly identical to that of Babita Arora as they were all working in the Maternity Hospital. Therefore, the awards passed by the Tribunal directing their reinstatement in service and back wages have to be set aside. | 1[ds]The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non-compliance of the provisions of Section 25F of the Act10. In view of the findings recorded above, the respondent would be entitled to compensation only in accordance with Section 25FFF of the Act and the award for reinstatement in service with back wages passed by the Tribunal which was affirmed by the High Court cannot be sustained and must be set aside11. The cases of other three respondents are exactly identical to that of Babita Arora as they were all working in the Maternity Hospital. Therefore, the awards passed by the Tribunal directing their reinstatement in service and back wages have to be set aside | 1 | 2,875 | 357 | ### 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:
of closing down some of its branches or depots. Even if such closure may not amount to closure of business of the Company, the Tribunal has no power to issue orders directing a Company to reopen a closed depot or branch, if the Company, in fact, closes it down and that closure is genuine and real. The closure may be treated as stoppage of part of the activity or business of the Company. Such stoppage of part of a business is an act of management which is entirely in the discretion of the Company carrying on the business. .................... In Management of Hindustan Steel Ltd. v. The Workmen & Ors. 1973 Labour & Industrial Cases 461, it was held by this Court as under in para 10 of the reports: 10. The word undertaking as used in S.25FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondents. Even closure or stoppage of a part of the business or activities of the employer would seem in law to be covered by this sub-section. The question has indeed to be decided on the facts of each case. ......................... In workmen of the Straw Board Manufacturing Company Limited v. M/s Straw Board Manufacturing Company Limited (1974) 1 LLJ 499 , this Court laid down the test of closure of a unit by observing that the most important aspect in a case relating to closure is whether one unit has such componental relation that the closing of one must lead to the closing of the other or the one cannot reasonably exist without the other. Functional integrity will assume an added significance in the case of closure. 9. It appears that after the aforesaid decisions of the Supreme Court, the legislature by an amendment made in the year 1982 to the Industrial Disputes Act defined the word closure by adding Section 2(cc). Section 2(cc) of the Act reads as under: 2(cc). closure means the permanent closing down of a place of employment or part thereof. It is, therefore, clear that in order to attract Section 25FFF it is not necessary that the entire establishment of an employer should be closed. If a unit or part of an undertaking which has no functional integrity with other units is closed, it will amount to closure within the meaning of Section 25FFF of the Act. In J.K. Synthetics v. Rajasthan Trade Union Kendra & Ors. (2001) 2 SCC 87 , it has been observed that the closure need not be of the entire plant. A closure can also be of a part of the plant. In Maruti Udyog Ltd. v. Ram Lal & Ors. (2005) 2 SCC 638 , it was held as under in para 21 of the report: 21. How far and to what extent the provisions of Section 25F of the 1947 Act would apply in case of transfer of undertaking or closure thereof is the question involved in this appeal. A plain reading of the provisions contained in Section 25FF and Section 25FFF of the 1947 Act leaves no manner of doubt that Section 25F thereof is to apply only for the purpose of computation of compensation and for no other. The expression as if used in Section 25FF and Section 25FFF of the 1947 Act is of great significance. The said term merely envisages computation of compensation in terms of Section 25F of the 1947 Act and not the other consequences flowing therefrom. Both Section 25FF and Section 25FFF provide for payment of compensation only, in case of transfer or closure of the undertaking. Once a valid transfer or a valid closure comes into effect, the relationship of employer and employee does not survive and ceases to exist. Compensation is required to be paid to the workman as a consequence thereof and for no other purpose. The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non-compliance of the provisions of Section 25F of the Act. 10. In view of the findings recorded above, the respondent would be entitled to compensation only in accordance with Section 25FFF of the Act and the award for reinstatement in service with back wages passed by the Tribunal which was affirmed by the High Court cannot be sustained and must be set aside. 11. The cases of other three respondents are exactly identical to that of Babita Arora as they were all working in the Maternity Hospital. Therefore, the awards passed by the Tribunal directing their reinstatement in service and back wages have to be set aside.
### Response:
1
### Explanation:
The position in law is, therefore, well settled that if the entire establishment of the employer is not closed down but only a unit or undertaking is closed down which has no functional integrity with other units or undertaking, the provisions of Section 25FFF of the Act will get attracted and the workmen are only entitled to compensation as provided in Section 25FFF of the Act which has to be calculated in accordance with Section 25F of the Act. The Tribunal and also the High Court clearly erred in holding that as other units of the appellant Red Cross Society like Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra were functioning, the termination of services of the respondent would amount to retrenchment. The Maternity Hospital was functioning as a distinct entity. It was not receiving any grant from the Government and was being run entirely on charitable basis from donations received from public. Due to financial stringency, the Maternity Hospital had to be closed down. The other three units, viz., Drug De-Addiction-cum-Rehabilitation Centre, Family Planning Centre and Viklang Kendra are receiving grants from government and are functioning as separate entities and the mere fact that they have not been closed down, cannot lead to the inference that the termination of services of the respondent was by way of retrenchment which was illegal on account of non-compliance of the provisions of Section 25F of the Act10. In view of the findings recorded above, the respondent would be entitled to compensation only in accordance with Section 25FFF of the Act and the award for reinstatement in service with back wages passed by the Tribunal which was affirmed by the High Court cannot be sustained and must be set aside11. The cases of other three respondents are exactly identical to that of Babita Arora as they were all working in the Maternity Hospital. Therefore, the awards passed by the Tribunal directing their reinstatement in service and back wages have to be set aside
|
Masum Hussain S/O Maqbool Hussain Vs. State of Madhya Pradesh and Others | Desai, J.1. One Masum Hussain (since deceased) was the successful bidder at a public auction for a stone quarry licence held on January 8, 1975. His bid at Rs. 11, 500 per annum for a period of three years, 1975 to 1978, was accepted by the Director of Geology and Mining, Madhya Pradesh. He executed an agreement on April 18, 1976. It appears that thereafter some dispute arose with regard to specifications of the area covered by the mining lease and the matter was carried to the Commissioner who allowed the appeal of the lessee and gave certain directions. In the meantime, as the lessee failed to pay the amount which he was liable to pay under the agreement of lease entered into by him with the State of Madhya Pradesh, a fresh auction was held in respect of the same area for which the original lessee had given his bid. Thereafter, the collector directed the recovery of Rs. 31, 625 alleging that the State has suffered a loss due to the breach of agreement committed by the lessee. The deceased lessee challenged the recovery proceedings by way of a writ petition in the High Court of Madhya Pradesh at Jabalpur. The High Court did not accept the contentions advanced on behalf of the petitioner and dismissed the petition in limine by a speaking order. Hence this appeal by the legal representative of the deceased lessee by special leave.2. Having heard learned counsel for the appellant as well as for the respondents, we are of the opinion that the order made by the Collector for recovery cannot be sustained and must be set aside. It is open to the Collector to proceed afresh in accordance with law.3. The Collector who started recovery proceedings assumed that once lessee committed breach of the agreement, the loss suffered by the State would be equal to the amount of rent payable by the lessee as represented by the amount of bid at which auction was knocked down. An identical contention was negatived by this Court in Kali Das Aggarwal v. State of M.P. [C.A. No. 228 of 1979, decided on January 22, 1979], observing that in such a situation the Collector must, in the first instance, adjudicate on the question as to the quantum of loss suffered by the Government of Madhya Pradesh by reason of the default, if any, on the part of the lessee who committed breach of the agreement of lease. This Court struck down the order by which coercing process was resorted to by the Collector without a preliminary adjudication and directed that the Collector should adjudicate the loss, if any, after giving an opportunity to the appellant to participate in the proceedings. The facts in the present case are identical with the facts in the appeal referred to above and the decision will mutatis mutandis apply in this case.4. There is a further error apparent on the record inasmuch as the Collector, though having held that the deceased lessee had deposited Rs. 9375, appears not to have given credit of the same amount. There was a dispute about the correct figure of deposit and the same may now be ascertained.5. Learned counsel for the respondent-State frankly stated that since the date of the second auction the loss will have to be assessed keeping in view the amount at which the bid of the deceased lessee was accepted and the highest bid at the second auction accepted by the concerned authorities, and the difference between the two may provide a reasonable measure of loss, if any, He, however, contended that for the earlier period there was nothing wrong in adjudging the loss equal to the amount annually payable by the deceased lessee. Without accepting this contention, from this point of view also, a fresh assessment is inevitable. | 1[ds]2. Having heard learned counsel for the appellant as well as for the respondents, we are of the opinion that the order made by the Collector for recovery cannot be sustained and must be set aside. It is open to the Collector to proceed afresh in accordance with law.3. The Collector who started recovery proceedings assumed that once lessee committed breach of the agreement, the loss suffered by the State would be equal to the amount of rent payable by the lessee as represented by the amount of bid at which auction was knocked down. An identical contention was negatived by this Court in Kali Das Aggarwal v. State of M.P. [C.A. No. 228 of 1979, decided on January 22, 1979], observing that in such a situation the Collector must, in the first instance, adjudicate on the question as to the quantum of loss suffered by the Government of Madhya Pradesh by reason of the default, if any, on the part of the lessee who committed breach of the agreement of lease. This Court struck down the order by which coercing process was resorted to by the Collector without a preliminary adjudication and directed that the Collector should adjudicate the loss, if any, after giving an opportunity to the appellant to participate in the proceedings. The facts in the present case are identical with the facts in the appeal referred to above and the decision will mutatis mutandis apply in this case.4. There is a further error apparent on the record inasmuch as the Collector, though having held that the deceased lessee had deposited Rs. 9375, appears not to have given credit of the same amount. There was a dispute about the correct figure of deposit and the same may now be ascertained. | 1 | 699 | 326 | ### 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:
Desai, J.1. One Masum Hussain (since deceased) was the successful bidder at a public auction for a stone quarry licence held on January 8, 1975. His bid at Rs. 11, 500 per annum for a period of three years, 1975 to 1978, was accepted by the Director of Geology and Mining, Madhya Pradesh. He executed an agreement on April 18, 1976. It appears that thereafter some dispute arose with regard to specifications of the area covered by the mining lease and the matter was carried to the Commissioner who allowed the appeal of the lessee and gave certain directions. In the meantime, as the lessee failed to pay the amount which he was liable to pay under the agreement of lease entered into by him with the State of Madhya Pradesh, a fresh auction was held in respect of the same area for which the original lessee had given his bid. Thereafter, the collector directed the recovery of Rs. 31, 625 alleging that the State has suffered a loss due to the breach of agreement committed by the lessee. The deceased lessee challenged the recovery proceedings by way of a writ petition in the High Court of Madhya Pradesh at Jabalpur. The High Court did not accept the contentions advanced on behalf of the petitioner and dismissed the petition in limine by a speaking order. Hence this appeal by the legal representative of the deceased lessee by special leave.2. Having heard learned counsel for the appellant as well as for the respondents, we are of the opinion that the order made by the Collector for recovery cannot be sustained and must be set aside. It is open to the Collector to proceed afresh in accordance with law.3. The Collector who started recovery proceedings assumed that once lessee committed breach of the agreement, the loss suffered by the State would be equal to the amount of rent payable by the lessee as represented by the amount of bid at which auction was knocked down. An identical contention was negatived by this Court in Kali Das Aggarwal v. State of M.P. [C.A. No. 228 of 1979, decided on January 22, 1979], observing that in such a situation the Collector must, in the first instance, adjudicate on the question as to the quantum of loss suffered by the Government of Madhya Pradesh by reason of the default, if any, on the part of the lessee who committed breach of the agreement of lease. This Court struck down the order by which coercing process was resorted to by the Collector without a preliminary adjudication and directed that the Collector should adjudicate the loss, if any, after giving an opportunity to the appellant to participate in the proceedings. The facts in the present case are identical with the facts in the appeal referred to above and the decision will mutatis mutandis apply in this case.4. There is a further error apparent on the record inasmuch as the Collector, though having held that the deceased lessee had deposited Rs. 9375, appears not to have given credit of the same amount. There was a dispute about the correct figure of deposit and the same may now be ascertained.5. Learned counsel for the respondent-State frankly stated that since the date of the second auction the loss will have to be assessed keeping in view the amount at which the bid of the deceased lessee was accepted and the highest bid at the second auction accepted by the concerned authorities, and the difference between the two may provide a reasonable measure of loss, if any, He, however, contended that for the earlier period there was nothing wrong in adjudging the loss equal to the amount annually payable by the deceased lessee. Without accepting this contention, from this point of view also, a fresh assessment is inevitable.
### Response:
1
### Explanation:
2. Having heard learned counsel for the appellant as well as for the respondents, we are of the opinion that the order made by the Collector for recovery cannot be sustained and must be set aside. It is open to the Collector to proceed afresh in accordance with law.3. The Collector who started recovery proceedings assumed that once lessee committed breach of the agreement, the loss suffered by the State would be equal to the amount of rent payable by the lessee as represented by the amount of bid at which auction was knocked down. An identical contention was negatived by this Court in Kali Das Aggarwal v. State of M.P. [C.A. No. 228 of 1979, decided on January 22, 1979], observing that in such a situation the Collector must, in the first instance, adjudicate on the question as to the quantum of loss suffered by the Government of Madhya Pradesh by reason of the default, if any, on the part of the lessee who committed breach of the agreement of lease. This Court struck down the order by which coercing process was resorted to by the Collector without a preliminary adjudication and directed that the Collector should adjudicate the loss, if any, after giving an opportunity to the appellant to participate in the proceedings. The facts in the present case are identical with the facts in the appeal referred to above and the decision will mutatis mutandis apply in this case.4. There is a further error apparent on the record inasmuch as the Collector, though having held that the deceased lessee had deposited Rs. 9375, appears not to have given credit of the same amount. There was a dispute about the correct figure of deposit and the same may now be ascertained.
|
Anil Kumar Chowdhury Vs. State Of Assam & Others | for the appointment of Shri Anil Kumar Choudhary and the determination of his seniority was sent for the first time by the Government of Assam under their No. AAI/56/64 dated 1st June, 1966, the Government of Assam had indicated that Shri Anil Kumar Choudhary was holding the non-cadre post of Additional District Magistrate, United Mikar and North Cachar Hills with effect from 9-12-1964 to 3-3-1966. A copy of the proposal sent by them is given as Annexure S-II to this Supplementary Counter Affidavit. Subsequently, the Government of Assam issued orders on 19th August, 1966 appointing Shri Anil Kumar Choudhary retrospectively appointing the petitioner to officiate as Deputy Commissioner United Mikar and North Cachar Hills, with effect from the 10th December, 1964 to the 2nd March, 1966. A copy of the said order of the Government of Assam is exhibited as Annexure S-II to this Supplementary Counter Affidavit."The plain consequence of this denial is disastrous because the posts he had occupied in the intervening years anterior to his appointment as ISA officer are non-cadre posts and cannot therefore, possess the sanctity which officiation in cadre-posts may have. Secondly, the rule requires, as a condition precedent, officiation in a particular post declared as cadre post by the State Government plus approval thereof, by the Central Government. The affidavit on behalf of the Central Government has categorically stated thus:"From the 9th March, 1966, till the date of his appointment to the service that is 1st February 1967, he held non-cadre post of Chairman, Gauhati Development Authority and Liaison Officer, Industries. His officiation in the cadre post was not approved and his officiation in the ex cadre post was not counted for the purposes of his seniority because the ex cadre post of Chairman Gauhati Development Authority and Liaison Officer, Industries was not declared equivalent to a Cadre post by the State Government. Hence, the date of his appointment to the Service was the relevant date for the fixation of his seniority."(emphasis ours)11. We have already pointed out with reference to the rule in question that the declaration of equivalence has to be made by the State Government. Counsel for the petitioner rightly argues that such declaration can be made ex post facto and there is authority of this Court for that proposition (vide R. P. Khannas case, (1972) 3 SCR 548 = (AIR 1972 SC 2350 ) (supra)). However, Shri Sachin Chowdhary is not able to put his finger on any specific declaration of equivalence made by the State Government except to state that in the counter affidavit by the State Government there is a statement admitting the post of Additional District Magistrate and those higher in rank claimed to have been occupied by the petitioner to be factually correct. Super-added is the States averment which goes in substantiation of the petitioners contention and may well be extracted:"The posts mentioned in sub-paras (i) to (v) are equivalent to cadre posts of Additional District Magistrate, Deputy Secretary or Settlement Officer. The post mentioned in sub-para (vi) is a cadre post and the posts mentioned in sub-para (vii) were regarded in rank, status, and responsibility as above the cadre posts of Additional District Magistrate and Deputy Secretary. These posts are equivalent to the cadre post of Deputy Commissioners or Heads of Departments posts like Commissioners of Taxes and Registrar of Co-operative Societies of the I. A. S. Cadre." Could there be a declaration without a formal notification to that effect? We think not, Governments speak and act formally and in solemn writing, not informally. In the present case no formal declaration is found but the State Government is prepared to go to the extent of helping the petitioner with the Statement :-"Formal declarations under Rule 9 of the 1. A. S. (Pay) Rules, 1954, are not necessary when non-cadre officers hold such ex cadre equivalent posts."Shri Sachin Choudhary uses this averment to contend that the State Governments affidavit may be treated as a formal declaration of equivalence but the difficulty is that there has been an amendment of the Rules in April 1967 whereby the power of the State Government to make retroactive declarations is deleted. Moreover as the Solicitor General points out such declaration as is found to have been made by the State has reference to the Pay Rules and not the Seniority Rules which bear upon, the present dispute.12. Another impediment confronting the unfortunate, petitioner is that the proviso to Rule 3 (3) (b) requires not merely the State Governments declaration regarding the posts being equal to cadre post but such officiation must be with the approval of the Central Government; none such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Government. The Solicitor General not content with these vital flaws points out two more shortcomings. In his submission, some of the posts occupied by the petitioner were purely temporary and this is testified by the record and so such short-term ad hoc officiation is insufficient. Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March 9. 1966.Continuity once disrupted, the claim breaks down. Service for long years comes to naught merely because of a weeks discontinuity. In law a short gap may prove a costly failure. The plea that this little interval was bridged by the joining time taken by the official may be good as an explanation for not taking charge immediately, but cannot cover up the legal ingredient of continuity in service.13. True, on account of certain formal non-conformance with the strictness of the rules, the petitioner lose the battle, but we hope the State will have compassionate regard to the substantial fulfilment of the qualifications for pre-dating his seniority in the IAS the rules predicate. The long but unavailing officiating experience of the petitioner may judiciously be taken into account by the State when promotional prospects arise not because the petitioner has a right but because his past should not altogether be lost. | 0[ds]10. We have no doubt that the petitioner has occupied responsible positions vis-a-vis cadre posts. Even so, the formal requirements of the rule just quoted are basic to his claim for adding special antecedent merit to pre-date his entry into the IAS. We may safely proceed on the facts affirmed in the counter-affidavit of the Union of India since no exception can ordinarily be, or has been, taken to that course.We have already pointed out with reference to the rule in question that the declaration of equivalence has to be made by the State Government. Counsel for the petitioner rightly argues that such declaration can be made ex post facto and there is authority of this Court for thatShri Sachin Chowdhary is not able to put his finger on any specific declaration of equivalence made by the State Government except to state that in the counter affidavit by the State Government there is a statement admitting the post of Additional District Magistrate and those higher in rank claimed to have been occupied by the petitioner to be factually correct.Another impediment confronting the unfortunate, petitioner is that the proviso to Rule 3 (3) (b) requires not merely the State Governments declaration regarding the posts being equal to cadre post but such officiation must be with the approval of the Central Government; none such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Government. The Solicitor General not content with these vital flaws points out two more shortcomings. In his submission, some of the posts occupied by the petitioner were purely temporary and this is testified by the record and so such short-term ad hoc officiation is insufficient. Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March 9. 1966.Continuity once disrupted, the claim breaks down. Service for long years comes to naught merely because of a weeks discontinuity. In law a short gap may prove a costly failure. The plea that this little interval was bridged by the joining time taken by the official may be good as an explanation for not taking charge immediately, but cannot cover up the legal ingredient of continuity in service.13. True, on account of certain formal non-conformance with the strictness of the rules, the petitioner lose the battle, but we hope the State will have compassionate regard to the substantial fulfilment of the qualifications for pre-dating his seniority in the IAS the rules predicate. The long but unavailing officiating experience of the petitioner may judiciously be taken into account by the State when promotional prospects arise not because the petitioner has a right but because his past should not altogether be lost. | 0 | 2,786 | 490 | ### 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:
for the appointment of Shri Anil Kumar Choudhary and the determination of his seniority was sent for the first time by the Government of Assam under their No. AAI/56/64 dated 1st June, 1966, the Government of Assam had indicated that Shri Anil Kumar Choudhary was holding the non-cadre post of Additional District Magistrate, United Mikar and North Cachar Hills with effect from 9-12-1964 to 3-3-1966. A copy of the proposal sent by them is given as Annexure S-II to this Supplementary Counter Affidavit. Subsequently, the Government of Assam issued orders on 19th August, 1966 appointing Shri Anil Kumar Choudhary retrospectively appointing the petitioner to officiate as Deputy Commissioner United Mikar and North Cachar Hills, with effect from the 10th December, 1964 to the 2nd March, 1966. A copy of the said order of the Government of Assam is exhibited as Annexure S-II to this Supplementary Counter Affidavit."The plain consequence of this denial is disastrous because the posts he had occupied in the intervening years anterior to his appointment as ISA officer are non-cadre posts and cannot therefore, possess the sanctity which officiation in cadre-posts may have. Secondly, the rule requires, as a condition precedent, officiation in a particular post declared as cadre post by the State Government plus approval thereof, by the Central Government. The affidavit on behalf of the Central Government has categorically stated thus:"From the 9th March, 1966, till the date of his appointment to the service that is 1st February 1967, he held non-cadre post of Chairman, Gauhati Development Authority and Liaison Officer, Industries. His officiation in the cadre post was not approved and his officiation in the ex cadre post was not counted for the purposes of his seniority because the ex cadre post of Chairman Gauhati Development Authority and Liaison Officer, Industries was not declared equivalent to a Cadre post by the State Government. Hence, the date of his appointment to the Service was the relevant date for the fixation of his seniority."(emphasis ours)11. We have already pointed out with reference to the rule in question that the declaration of equivalence has to be made by the State Government. Counsel for the petitioner rightly argues that such declaration can be made ex post facto and there is authority of this Court for that proposition (vide R. P. Khannas case, (1972) 3 SCR 548 = (AIR 1972 SC 2350 ) (supra)). However, Shri Sachin Chowdhary is not able to put his finger on any specific declaration of equivalence made by the State Government except to state that in the counter affidavit by the State Government there is a statement admitting the post of Additional District Magistrate and those higher in rank claimed to have been occupied by the petitioner to be factually correct. Super-added is the States averment which goes in substantiation of the petitioners contention and may well be extracted:"The posts mentioned in sub-paras (i) to (v) are equivalent to cadre posts of Additional District Magistrate, Deputy Secretary or Settlement Officer. The post mentioned in sub-para (vi) is a cadre post and the posts mentioned in sub-para (vii) were regarded in rank, status, and responsibility as above the cadre posts of Additional District Magistrate and Deputy Secretary. These posts are equivalent to the cadre post of Deputy Commissioners or Heads of Departments posts like Commissioners of Taxes and Registrar of Co-operative Societies of the I. A. S. Cadre." Could there be a declaration without a formal notification to that effect? We think not, Governments speak and act formally and in solemn writing, not informally. In the present case no formal declaration is found but the State Government is prepared to go to the extent of helping the petitioner with the Statement :-"Formal declarations under Rule 9 of the 1. A. S. (Pay) Rules, 1954, are not necessary when non-cadre officers hold such ex cadre equivalent posts."Shri Sachin Choudhary uses this averment to contend that the State Governments affidavit may be treated as a formal declaration of equivalence but the difficulty is that there has been an amendment of the Rules in April 1967 whereby the power of the State Government to make retroactive declarations is deleted. Moreover as the Solicitor General points out such declaration as is found to have been made by the State has reference to the Pay Rules and not the Seniority Rules which bear upon, the present dispute.12. Another impediment confronting the unfortunate, petitioner is that the proviso to Rule 3 (3) (b) requires not merely the State Governments declaration regarding the posts being equal to cadre post but such officiation must be with the approval of the Central Government; none such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Government. The Solicitor General not content with these vital flaws points out two more shortcomings. In his submission, some of the posts occupied by the petitioner were purely temporary and this is testified by the record and so such short-term ad hoc officiation is insufficient. Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March 9. 1966.Continuity once disrupted, the claim breaks down. Service for long years comes to naught merely because of a weeks discontinuity. In law a short gap may prove a costly failure. The plea that this little interval was bridged by the joining time taken by the official may be good as an explanation for not taking charge immediately, but cannot cover up the legal ingredient of continuity in service.13. True, on account of certain formal non-conformance with the strictness of the rules, the petitioner lose the battle, but we hope the State will have compassionate regard to the substantial fulfilment of the qualifications for pre-dating his seniority in the IAS the rules predicate. The long but unavailing officiating experience of the petitioner may judiciously be taken into account by the State when promotional prospects arise not because the petitioner has a right but because his past should not altogether be lost.
### Response:
0
### Explanation:
10. We have no doubt that the petitioner has occupied responsible positions vis-a-vis cadre posts. Even so, the formal requirements of the rule just quoted are basic to his claim for adding special antecedent merit to pre-date his entry into the IAS. We may safely proceed on the facts affirmed in the counter-affidavit of the Union of India since no exception can ordinarily be, or has been, taken to that course.We have already pointed out with reference to the rule in question that the declaration of equivalence has to be made by the State Government. Counsel for the petitioner rightly argues that such declaration can be made ex post facto and there is authority of this Court for thatShri Sachin Chowdhary is not able to put his finger on any specific declaration of equivalence made by the State Government except to state that in the counter affidavit by the State Government there is a statement admitting the post of Additional District Magistrate and those higher in rank claimed to have been occupied by the petitioner to be factually correct.Another impediment confronting the unfortunate, petitioner is that the proviso to Rule 3 (3) (b) requires not merely the State Governments declaration regarding the posts being equal to cadre post but such officiation must be with the approval of the Central Government; none such is forthcoming. And, indeed, the absence of such approval is the stand of the Central Government. The Solicitor General not content with these vital flaws points out two more shortcomings. In his submission, some of the posts occupied by the petitioner were purely temporary and this is testified by the record and so such short-term ad hoc officiation is insufficient. Moreover, there is a break in the officiating service of the petitioner between March 3, 1966 and March 9. 1966.Continuity once disrupted, the claim breaks down. Service for long years comes to naught merely because of a weeks discontinuity. In law a short gap may prove a costly failure. The plea that this little interval was bridged by the joining time taken by the official may be good as an explanation for not taking charge immediately, but cannot cover up the legal ingredient of continuity in service.13. True, on account of certain formal non-conformance with the strictness of the rules, the petitioner lose the battle, but we hope the State will have compassionate regard to the substantial fulfilment of the qualifications for pre-dating his seniority in the IAS the rules predicate. The long but unavailing officiating experience of the petitioner may judiciously be taken into account by the State when promotional prospects arise not because the petitioner has a right but because his past should not altogether be lost.
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Smt. Shanno Devi Vs. Mangal Sain | and has ignored important evidence which, it is said showed clearly that the respondent had no intention of residing permanently in India. In considering such an argument, it is proper for us to bear in mind the provisions of S. 116(B) of the Representation of the People Act which lays down that the decision of the High Court on appeal from an order of the Election Tribunal in an election petition shall be " final and conclusive. 16. It has been pointed out in more than one case by this Court that while these provisions do not stand in the way of this Courts interfering with the High Courts decision in a fit case, it would be proper for us to bear these provisions of the Representation of the People Act in mind when the correctness of such a decision is challenged before this Court. It is unnecessary for us to consider whether the view of the High Court that even in 1944 Mangal Sain could be said to have been migrated to the eastern districts of Punjab can be successfully challenged or not. Even assuming that that conclusion is out of the way, the further conclusion of the High Court that having moved from his home district to Jullunder in 1944 Mangal Sain had after August 15, 1947, no other intention than of making the territory of India his place of abode would be sufficient to prove his migration to the territory of India from what is now Pakistan. We have been taken through the materials on the record relevant to this question and we can see nothing that would justify our interference with the High Courts conclusion on this point. Much stress was laid by the appellants counsel on the fact that Mangal Sain left Indian shores for Burma in January 1950 and after his arrival there made an application under S. 7(1) of the Union Citizenship Act, 1948 (of Burma) giving notice of his intention to apply for a certificate of naturalization and his statement therein that he intended to reside permanently within the Union of Burma. Assuming however that in October 1950, or even in January 1950 when he left for Burma, Mangal Sain had formed the intention of taking up his permanent residence in Burma, that is wholly irrelevant to the question whether in 1947 he had the intention of residing permanently in India. Learned counsel for the appellant also drew our attention to a statement made in this very application that Mangal Sain had returned to Burma with his mother in 1947. The High Court has after considering this statement held that he had not so returned in 1947. We see no reason to differ with this finding of the High Court. In our opinion, there is nothing on the record to justify any doubt as regards the correctness of the High Courts decision that after August 15, 1947, Mangal Sain who had earlier moved from a place now in Pakistan to Jullunder in India definitely made up his mind to make India his permanent home. Whether or not in January 1950 he changed that intention is irrelevant for our purpose. 17. Our conclusion therefore is that the High Court is right in holding that Mangal Sain satisfies the first requirement of Art. 6 of the Constitution of "migration to the territory of India from the territory now included in Pakistan. It is not disputed and does not ever appear to have been disputed that Mangal Sain was born in India as defined in the Government of India Act, 1935 and thus satisfies the requirement of cl. (a) of Art. 6. 18. There can be no doubt also that since the date of his migration which has for the present purpose to be taken as August 15, 1947, Mangal Sain has been "ordinarily residing in the territory of India. Mr. Sastri contended that to satisfy the test of being "ordinarily resident in the territory of India since the date of his migration it had to be shown that Mangal Sain was in India on January 26, 1950. We do not think that is required. It is first to be noticed that Art. 6 of the Constitution is one of the Article which came into force on November 26, 1949. For applying the test of being "ordinarily resident in the territory of India since the date of his migration, it is necessary therefore to consider the period up to the 26th day of November, 1949 from the date of migration. It is not however even necessary that on the 26th day of November 1949 or immediately before that date he must have been residing in the territory of India. What is necessary is that taking the period beginning with the date on which migration became complete and ending with the date November 26, 1949, as a whole, the person has been " ordinarily resident in the territory of India. It is not necessary that for every day of this period he should have resided in India. In the absence of the definition of the words "ordinarily resident in the Constitution it is reasonable to take the words to mean" resident during this period without any serious break. The materials on the record leave no doubt that there was no break worth the name in Mangal Sains residence in the territory of India from at least August 15, 1947, till the 26th November, 1949. 19. We have therefore come to the conclusion that the High Court was right in sustaining Mangal Sains claim to be deemed a citizen of India under Art. 6 of the Constitution and, in that view was also right in allowing his appeal and ordering the dismissal of the Election Petition. 20. In the view we have taken as regards Mangal Sains claim to citizenship under Art. 6 of the Constitution it is not necessary to consider whether his claim to citizenship under Art. 5 of the Constitution was also good. 21. | 0[ds]7. The extreme contention raised by Mr. Sastri on behalf of the appellant that migration under Art. 6 must take place after the territory of India came into existence under the Constitution cannot be accepted. It has to be noticed that Art. 6 deals with the question as to who shall be deemed to be a citizen of India at the commencement of the Constitution. That itself suggests, in the absence of anything to indicate a contrary intention, that the migration which is made an essential requirement for this purpose must have taken place before such commencement. It is also worth noticing that Cl. (b) of Art. 6 which mentions two conditions, one of which must be satisfied in addition to birth as mentioned in Cl. (a) and " migration as mentioned in the main portion of the Article being proved, speaks in its first sub-clause of migration " before the 19th day of July 1948 and in sub-cl. (ii) migration " after the 19th day of July 1948, The second sub-clause requires that the person must be registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of the Constitution. The proviso to that Article says that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application. It is clear from this that the act of migration in Art. 6 must take place before the commencement of the Constitution. It is clear therefore that "migrated to the territory of India means "migrated at any time before the commencement of the Constitution to a place now in the territory of India10. We have referred to these cases on the meaning of the word " Immigration to show that there can be no doubt that the word " migrate may have in some contexts the wider meaning " come or remove to a place without an intention to reside permanently and in some context the narrower meaning " come or removed to a place with the intention of residing there permanently. The fact that the Constitution makers did not use the words " with the intention to reside permanently in Art. 6 is however no reason to think that the wider meaning was intended. In deciding whether the word " migrate was used in the wider or the narrower sense, it is necessary to consider carefully the purpose and scheme of this constitutional legislation. The Constitution after defining the territory of India and making provisions as to how it can be added to or altered, in the four articles contained in its first Chapter proceeds in the second Chapter to deal with the subject of citizenship. Of the seven articles in this chapter the last Article, the Art. 11 only saves expressly the right of Parliament to make provisions as regards acquisition and termination of citizenship and all other matters relating to citizenship. Of the other six articles, the first Art. 5, says who shall be citizens of India at the commencement of the Constitution; while Arts. 6 and 8 lay down who though not citizens under Art. 5 shall be deemed to be citizens of India. Art. 10 provides that once a person is a citizen of India or is deemed to be a citizen of India he shall continue to be a citizen of India, subject of course to the provisions of any law that may be made by Parliament. Article 9 provides that if a person has voluntarily acquired citizenship of any foreign State he shall not be a citizen of India or deemed to be a citizen of India. Art. 7 also denies the right of citizenship to some persons who would have otherwise been citizens of India under Art. 5 or would be deemed to be citizens of India under Art. 611. The primary provision for citizenship of India, in this scheme is in Art5. That follows the usual practice of insisting on birth or domicile which shortly stated means " residence with the intention of living and dying in the country as an essential requirement for citizenship; and confers citizenship on a person fulfilling this requirement if he also satisfied another requirement as regards his birth within what is now the territory of India or birth of any of his parents within this area or ordinary residence in this area for a continuous period of five years immediately preceding the commencement of the Constitution. If there had been no division of India and no portion of the old India had been lost this would have been sufficient, as regards conferment of citizenship apart from the special provision for giving such rights to persons of Indian origin residing outside India. But part of what was India as defined inthe Government of India Act,, had ceased to be India and had become Pakistan. This gave rise to the serious problem whether or not to treat as citizens of India the hundreds of thousands of persons who were of Indian origin-in the sense that they or any of their parents or any of their grand-parents had been born in India-but who would not become citizens under Art5. The Constitution-makers by the provisions of Art. 6 decided to treat as citizens some of these but not all. Those who had not come to the new India before the date of the commencement of the Constitution were excluded, those who had so come were divided into two categories -those who had come before the 19th July, 1948, and those who had come on or after the 19th July, 1948. Persons in the first category had in order to be treated as citizens to satisfy the further requirement of " migration whatever that meant, and of ordinary residence in the territory of India since they " migrated to India; while those in the second category had, in addition to having migrated, to be residents for not less than six months preceding the date of the application for registration as citizens which application had to be filed before the date of the commencement of the Constitution.But while the primary provisions in the Constitution as regards the citizenship for people born at a place now included in India and people whose parents were born at a place now in India insist on the requirement of intention to reside here permanently by using the word " domicile, Art. 6 which under the scheme of the Constitution deals with what may be called " secondary citizenship and says about some persons that they will be deemed to be citizens of India, does not mention "domicile as a requirement. Can it be that the Constitution-makers thought that though in the case of persons born in what has now become India or those any of whose parents was born in what is now India as also in the case of person who had been residing here for not less than five years in what is now India, it was necessary to insist on domicile before conferring citizenship, that was not necessary in the case of persons whose parents or any of whose grand-parents had been born in what was formerly India but is not now India? In our opinion the Constitution-makers could not have thought so. They were aware that the general rule in almost all the countries of the world was to insist on birth or domicile as an essential pre-requisite for citizenship. They knew that in dealing with a somewhat similar problem as regards citizenship of persons born out of what was then the territory of Irish Free State, the Constitution of the Irish Free State had also insisted on domicile in the Irish Free State as a requirement for citizenship. There can be no conceivable reason for their not making a similar insistence here as regards the persons who were born outside what is now India, or persons any of whose parents or grandparents were born there. Mention must also be made of the curious consequences that would follow from a view that an intention to reside permanently in the territory of India is not necessarily in Art. 6. Take the case of two persons, one of whom was born in what is now India and has all along lived there and another person who though born in what is now India went to live in areas now Pakistan and then moved back to areas in what is now India. The first named person would have to satisfy the requirement of domicile at the commencement of the Constitution before he is a citizen; but the second person would not have to satisfy this condition. It would be unreasonable to think that such a curious result could have been intended by the Constitution-makersOur conclusion therefore is that the High Court is right in holding that Mangal Sain satisfies the first requirement of Art. 6 of the Constitution of "migration to the territory of India from the territory now included in Pakistan. It is not disputed and does not ever appear to have been disputed that Mangal Sain was born in India as defined inthe Government of India Act,1935and thus satisfies the requirement of cl. (a) of Art. 6There can be no doubt also that since the date of his migration which has for the present purpose to be taken as August 15, 1947, Mangal Sain has been "ordinarily residing in the territory of India. Mr. Sastri contended that to satisfy the test of being "ordinarily resident in the territory of India since the date of his migration it had to be shown that Mangal Sain was in India on January 26, 1950. We do not think that is required. It is first to be noticed that Art. 6 of the Constitution is one of the Article which came into force on November 26, 1949. For applying the test of being "ordinarily resident in the territory of India since the date of his migration, it is necessary therefore to consider the period up to the 26th day of November, 1949 from the date of migration. It is not however even necessary that on the 26th day of November 1949 or immediately before that date he must have been residing in the territory of India. What is necessary is that taking the period beginning with the date on which migration became complete and ending with the date November 26, 1949, as a whole, the person has been " ordinarily resident in the territory of India. It is not necessary that for every day of this period he should have resided in India. In the absence of the definition of the words "ordinarily resident in the Constitution it is reasonable to take the words to mean" resident during this period without any serious break. The materials on the record leave no doubt that there was no break worth the name in Mangal Sains residence in the territory of India from at least August 15, 1947, till the 26th November, 1949We have therefore come to the conclusion that the High Court was right in sustaining Mangal Sains claim to be deemed a citizen of India under Art. 6 of the Constitution and, in that view was also right in allowing his appeal and ordering the dismissal of the Election Petition. | 0 | 5,627 | 2,049 | ### Instruction:
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and has ignored important evidence which, it is said showed clearly that the respondent had no intention of residing permanently in India. In considering such an argument, it is proper for us to bear in mind the provisions of S. 116(B) of the Representation of the People Act which lays down that the decision of the High Court on appeal from an order of the Election Tribunal in an election petition shall be " final and conclusive. 16. It has been pointed out in more than one case by this Court that while these provisions do not stand in the way of this Courts interfering with the High Courts decision in a fit case, it would be proper for us to bear these provisions of the Representation of the People Act in mind when the correctness of such a decision is challenged before this Court. It is unnecessary for us to consider whether the view of the High Court that even in 1944 Mangal Sain could be said to have been migrated to the eastern districts of Punjab can be successfully challenged or not. Even assuming that that conclusion is out of the way, the further conclusion of the High Court that having moved from his home district to Jullunder in 1944 Mangal Sain had after August 15, 1947, no other intention than of making the territory of India his place of abode would be sufficient to prove his migration to the territory of India from what is now Pakistan. We have been taken through the materials on the record relevant to this question and we can see nothing that would justify our interference with the High Courts conclusion on this point. Much stress was laid by the appellants counsel on the fact that Mangal Sain left Indian shores for Burma in January 1950 and after his arrival there made an application under S. 7(1) of the Union Citizenship Act, 1948 (of Burma) giving notice of his intention to apply for a certificate of naturalization and his statement therein that he intended to reside permanently within the Union of Burma. Assuming however that in October 1950, or even in January 1950 when he left for Burma, Mangal Sain had formed the intention of taking up his permanent residence in Burma, that is wholly irrelevant to the question whether in 1947 he had the intention of residing permanently in India. Learned counsel for the appellant also drew our attention to a statement made in this very application that Mangal Sain had returned to Burma with his mother in 1947. The High Court has after considering this statement held that he had not so returned in 1947. We see no reason to differ with this finding of the High Court. In our opinion, there is nothing on the record to justify any doubt as regards the correctness of the High Courts decision that after August 15, 1947, Mangal Sain who had earlier moved from a place now in Pakistan to Jullunder in India definitely made up his mind to make India his permanent home. Whether or not in January 1950 he changed that intention is irrelevant for our purpose. 17. Our conclusion therefore is that the High Court is right in holding that Mangal Sain satisfies the first requirement of Art. 6 of the Constitution of "migration to the territory of India from the territory now included in Pakistan. It is not disputed and does not ever appear to have been disputed that Mangal Sain was born in India as defined in the Government of India Act, 1935 and thus satisfies the requirement of cl. (a) of Art. 6. 18. There can be no doubt also that since the date of his migration which has for the present purpose to be taken as August 15, 1947, Mangal Sain has been "ordinarily residing in the territory of India. Mr. Sastri contended that to satisfy the test of being "ordinarily resident in the territory of India since the date of his migration it had to be shown that Mangal Sain was in India on January 26, 1950. We do not think that is required. It is first to be noticed that Art. 6 of the Constitution is one of the Article which came into force on November 26, 1949. For applying the test of being "ordinarily resident in the territory of India since the date of his migration, it is necessary therefore to consider the period up to the 26th day of November, 1949 from the date of migration. It is not however even necessary that on the 26th day of November 1949 or immediately before that date he must have been residing in the territory of India. What is necessary is that taking the period beginning with the date on which migration became complete and ending with the date November 26, 1949, as a whole, the person has been " ordinarily resident in the territory of India. It is not necessary that for every day of this period he should have resided in India. In the absence of the definition of the words "ordinarily resident in the Constitution it is reasonable to take the words to mean" resident during this period without any serious break. The materials on the record leave no doubt that there was no break worth the name in Mangal Sains residence in the territory of India from at least August 15, 1947, till the 26th November, 1949. 19. We have therefore come to the conclusion that the High Court was right in sustaining Mangal Sains claim to be deemed a citizen of India under Art. 6 of the Constitution and, in that view was also right in allowing his appeal and ordering the dismissal of the Election Petition. 20. In the view we have taken as regards Mangal Sains claim to citizenship under Art. 6 of the Constitution it is not necessary to consider whether his claim to citizenship under Art. 5 of the Constitution was also good. 21.
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not come to the new India before the date of the commencement of the Constitution were excluded, those who had so come were divided into two categories -those who had come before the 19th July, 1948, and those who had come on or after the 19th July, 1948. Persons in the first category had in order to be treated as citizens to satisfy the further requirement of " migration whatever that meant, and of ordinary residence in the territory of India since they " migrated to India; while those in the second category had, in addition to having migrated, to be residents for not less than six months preceding the date of the application for registration as citizens which application had to be filed before the date of the commencement of the Constitution.But while the primary provisions in the Constitution as regards the citizenship for people born at a place now included in India and people whose parents were born at a place now in India insist on the requirement of intention to reside here permanently by using the word " domicile, Art. 6 which under the scheme of the Constitution deals with what may be called " secondary citizenship and says about some persons that they will be deemed to be citizens of India, does not mention "domicile as a requirement. Can it be that the Constitution-makers thought that though in the case of persons born in what has now become India or those any of whose parents was born in what is now India as also in the case of person who had been residing here for not less than five years in what is now India, it was necessary to insist on domicile before conferring citizenship, that was not necessary in the case of persons whose parents or any of whose grand-parents had been born in what was formerly India but is not now India? In our opinion the Constitution-makers could not have thought so. They were aware that the general rule in almost all the countries of the world was to insist on birth or domicile as an essential pre-requisite for citizenship. They knew that in dealing with a somewhat similar problem as regards citizenship of persons born out of what was then the territory of Irish Free State, the Constitution of the Irish Free State had also insisted on domicile in the Irish Free State as a requirement for citizenship. There can be no conceivable reason for their not making a similar insistence here as regards the persons who were born outside what is now India, or persons any of whose parents or grandparents were born there. Mention must also be made of the curious consequences that would follow from a view that an intention to reside permanently in the territory of India is not necessarily in Art. 6. Take the case of two persons, one of whom was born in what is now India and has all along lived there and another person who though born in what is now India went to live in areas now Pakistan and then moved back to areas in what is now India. The first named person would have to satisfy the requirement of domicile at the commencement of the Constitution before he is a citizen; but the second person would not have to satisfy this condition. It would be unreasonable to think that such a curious result could have been intended by the Constitution-makersOur conclusion therefore is that the High Court is right in holding that Mangal Sain satisfies the first requirement of Art. 6 of the Constitution of "migration to the territory of India from the territory now included in Pakistan. It is not disputed and does not ever appear to have been disputed that Mangal Sain was born in India as defined inthe Government of India Act,1935and thus satisfies the requirement of cl. (a) of Art. 6There can be no doubt also that since the date of his migration which has for the present purpose to be taken as August 15, 1947, Mangal Sain has been "ordinarily residing in the territory of India. Mr. Sastri contended that to satisfy the test of being "ordinarily resident in the territory of India since the date of his migration it had to be shown that Mangal Sain was in India on January 26, 1950. We do not think that is required. It is first to be noticed that Art. 6 of the Constitution is one of the Article which came into force on November 26, 1949. For applying the test of being "ordinarily resident in the territory of India since the date of his migration, it is necessary therefore to consider the period up to the 26th day of November, 1949 from the date of migration. It is not however even necessary that on the 26th day of November 1949 or immediately before that date he must have been residing in the territory of India. What is necessary is that taking the period beginning with the date on which migration became complete and ending with the date November 26, 1949, as a whole, the person has been " ordinarily resident in the territory of India. It is not necessary that for every day of this period he should have resided in India. In the absence of the definition of the words "ordinarily resident in the Constitution it is reasonable to take the words to mean" resident during this period without any serious break. The materials on the record leave no doubt that there was no break worth the name in Mangal Sains residence in the territory of India from at least August 15, 1947, till the 26th November, 1949We have therefore come to the conclusion that the High Court was right in sustaining Mangal Sains claim to be deemed a citizen of India under Art. 6 of the Constitution and, in that view was also right in allowing his appeal and ordering the dismissal of the Election Petition.
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Raj Bhongshi Prasad Vs. State of Assam | Sikri, J.1. Four persons were committed to the Court of Sessions and charged under Section 457, 380 and 411, I.P.C. They were committed by the Magistrate as he found that amount involved was large and he was not competent to award the required punishment. The prosecution case was that a burglary took place in the R.M.S. (Railway Mail Service) Officer at Tezpur, on the night of the 20th November, 1962, when the town was being evacuated due to the fall of Bomdila. There is no dispute that the burglary took place and a large amount of money was stolen. The learned Sessions Judge acquitted Raj Bhongshi Prasad as no case was made out against him. Evidence led against him consisted in the main, of the following evidence. P.W. 14, Bhupendra Chandra Sen, Sub-Inspector, searched the house of accused Raj Bhongshi and he described the search as follows :"I searched the house of accused, Raj Bhongshi Prasad, being led by accused Ramasis. Ramasis brought out a suit case, from under the bed-stead of accused Raj Bhongshi .... Inside the suit case I found 16 ten rupee G.C. notes, 77 hundred rupee notes of difference series and some other things inside suit-case ...."On cross-examination he stated that "I found the money in the western Bhit house under a bed-stead. I cannot say whose bed it was .... I took it to be the house of Raj Bhongshi as Ramasis showed it to me .... It was a small house with two rooms. There were two bed-steads in the room where the money was found ..... I do not know in which bed-stead accused Raj Bhongshi used to sleep". It was suggested to him and he denied the suggestion, that it was Ramasis who brought out the money from under the bed-stead of accused Raj Bhongshi. But the next witness Sadhu Shah deposed that "then Ramasis went inside the house alone and brought out the box." P.W. 16, Sishuranjan Banerjee could not say who brought out the suit case containing the money form inside the house. The learned Sessions Judge criticised the search because no two respectable persons of the locality were asked to bear witness to the search. He held that as the house was not actually in occupation of accused Raj Bhongshi and there was no reliable evidence to show from whom the money was recovered and there was the possibility of introducing the suit case into the house by the Jhap door on the back side by some body else, no case was proved against the accused Raj Bhongshi. The other accused Ramasis was held guilty under Section 457, I.P.C. and he acquitted the others of charges led against them.2. The State filed an appeal. The High Court convicted accused Raj Bhongshi under Section 411, I.P.C. and sentenced him to rigorous imprisonment for two years. This Court granted special leave and now the appeal is before us.3. The High Court after noticing the evidence observed that "it is clear form the evidence that the house was small and consisted of two rooms. There were two other person in the house, viz. one washerman and another man named Sheodani. The room from which the suit-case containing the money was recovered had two bed-steads. Obviously it was occupied by Raj Bhongshi and Ramasis. They were both employees in the R.M.S. Office at Tezpur. The came together from Tezpur and Ramasis stayed with Raj Bhongshi. Therefore, it can be held beyond any reasonable doubt that accused Raj Bhongshi knew about the money in the suit case and also that it was looted from the R.M.S. Office. He was present when the money was recovered. In his examination under Section 342, Cr. P.C., he said that he could not see what was found in the suit case. It was not his case that he did not know about the existence of currency notes in the suit case. All this goes to show his knowledge about the money in the suit case and such a huge amount kept in the suit case by a petty employee like Ramasis must have been known to accused Raj Bhongshi to be stolen property. He kept the suit case in his house to help Ramasis obviously for valuable consideration. In the result he is guilty under Section 411, I.P.C." Section 411, I.P.C., read as follows :"Whoever dishonestly receives or retains and stolen property, knowing of having reason to believe the same to be stolen property, shall be punished with imprisonment of wither description for a term which may extend to three years, or with fine, or with both."4. The learned counsel contends that there is no evidence to prove that the accused knew about the money which was stolen and that he received or retained any such property. We are unable to find any evidence on record to show that the accused received or retained the stolen property. Even if it be assumed to be relevant, there is no evidence that the bed-stead under which the suit case was found was his bed-stead. There is also no evidence that the suit case belonged to him. We have already set out the relevant portion of the evidence and it appears from that that it was really Ramasis who went inside the house and brought out the suit case. Further, there is no evidence to show that he knew that the property was stolen and was kept in the suit case. | 1[ds]We are unable to find any evidence on record to show that the accused received or retained the stolen property. Even if it be assumed to be relevant, there is no evidence that the bed-stead under which the suit case was found was his bed-stead. There is also no evidence that the suit case belonged to him. We have already set out the relevant portion of the evidence and it appears from that that it was really Ramasis who went inside the house and brought out the suit case. Further, there is no evidence to show that he knew that the property was stolen and was kept in the suit case. | 1 | 1,009 | 122 | ### 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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Sikri, J.1. Four persons were committed to the Court of Sessions and charged under Section 457, 380 and 411, I.P.C. They were committed by the Magistrate as he found that amount involved was large and he was not competent to award the required punishment. The prosecution case was that a burglary took place in the R.M.S. (Railway Mail Service) Officer at Tezpur, on the night of the 20th November, 1962, when the town was being evacuated due to the fall of Bomdila. There is no dispute that the burglary took place and a large amount of money was stolen. The learned Sessions Judge acquitted Raj Bhongshi Prasad as no case was made out against him. Evidence led against him consisted in the main, of the following evidence. P.W. 14, Bhupendra Chandra Sen, Sub-Inspector, searched the house of accused Raj Bhongshi and he described the search as follows :"I searched the house of accused, Raj Bhongshi Prasad, being led by accused Ramasis. Ramasis brought out a suit case, from under the bed-stead of accused Raj Bhongshi .... Inside the suit case I found 16 ten rupee G.C. notes, 77 hundred rupee notes of difference series and some other things inside suit-case ...."On cross-examination he stated that "I found the money in the western Bhit house under a bed-stead. I cannot say whose bed it was .... I took it to be the house of Raj Bhongshi as Ramasis showed it to me .... It was a small house with two rooms. There were two bed-steads in the room where the money was found ..... I do not know in which bed-stead accused Raj Bhongshi used to sleep". It was suggested to him and he denied the suggestion, that it was Ramasis who brought out the money from under the bed-stead of accused Raj Bhongshi. But the next witness Sadhu Shah deposed that "then Ramasis went inside the house alone and brought out the box." P.W. 16, Sishuranjan Banerjee could not say who brought out the suit case containing the money form inside the house. The learned Sessions Judge criticised the search because no two respectable persons of the locality were asked to bear witness to the search. He held that as the house was not actually in occupation of accused Raj Bhongshi and there was no reliable evidence to show from whom the money was recovered and there was the possibility of introducing the suit case into the house by the Jhap door on the back side by some body else, no case was proved against the accused Raj Bhongshi. The other accused Ramasis was held guilty under Section 457, I.P.C. and he acquitted the others of charges led against them.2. The State filed an appeal. The High Court convicted accused Raj Bhongshi under Section 411, I.P.C. and sentenced him to rigorous imprisonment for two years. This Court granted special leave and now the appeal is before us.3. The High Court after noticing the evidence observed that "it is clear form the evidence that the house was small and consisted of two rooms. There were two other person in the house, viz. one washerman and another man named Sheodani. The room from which the suit-case containing the money was recovered had two bed-steads. Obviously it was occupied by Raj Bhongshi and Ramasis. They were both employees in the R.M.S. Office at Tezpur. The came together from Tezpur and Ramasis stayed with Raj Bhongshi. Therefore, it can be held beyond any reasonable doubt that accused Raj Bhongshi knew about the money in the suit case and also that it was looted from the R.M.S. Office. He was present when the money was recovered. In his examination under Section 342, Cr. P.C., he said that he could not see what was found in the suit case. It was not his case that he did not know about the existence of currency notes in the suit case. All this goes to show his knowledge about the money in the suit case and such a huge amount kept in the suit case by a petty employee like Ramasis must have been known to accused Raj Bhongshi to be stolen property. He kept the suit case in his house to help Ramasis obviously for valuable consideration. In the result he is guilty under Section 411, I.P.C." Section 411, I.P.C., read as follows :"Whoever dishonestly receives or retains and stolen property, knowing of having reason to believe the same to be stolen property, shall be punished with imprisonment of wither description for a term which may extend to three years, or with fine, or with both."4. The learned counsel contends that there is no evidence to prove that the accused knew about the money which was stolen and that he received or retained any such property. We are unable to find any evidence on record to show that the accused received or retained the stolen property. Even if it be assumed to be relevant, there is no evidence that the bed-stead under which the suit case was found was his bed-stead. There is also no evidence that the suit case belonged to him. We have already set out the relevant portion of the evidence and it appears from that that it was really Ramasis who went inside the house and brought out the suit case. Further, there is no evidence to show that he knew that the property was stolen and was kept in the suit case.
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We are unable to find any evidence on record to show that the accused received or retained the stolen property. Even if it be assumed to be relevant, there is no evidence that the bed-stead under which the suit case was found was his bed-stead. There is also no evidence that the suit case belonged to him. We have already set out the relevant portion of the evidence and it appears from that that it was really Ramasis who went inside the house and brought out the suit case. Further, there is no evidence to show that he knew that the property was stolen and was kept in the suit case.
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RAMNATH AND CO Vs. THE COMMISSIONER OF INCOME TAX | which were rendered from India. Therefore, the findings of the Appellate Authority and ITAT, being based on irrelevant considerations while ignoring the relevant aspects, were neither of binding nature nor could have been decisive of the matter. Hence, neither anything turns upon the submissions made on behalf of the appellant with reference to the decision in K. Ravindranathan Nair (supra) nor this aspect requires any further discussion. 37. In our view, the High Court has rightly analysed the entire matter with reference to the relevant questions and has rightly proceeded on the law applicable to the case. The impugned judgment calls for no interference. The appellant M/s Laxmi Agencies - the appeal arising out of SLP (Civil) No.23699 of 2016 . 38. This appeal involves similar claim of the other assessee firm M/s Laxmi Agencies, said to be engaged in similar business of rendering services to foreign buyers of Indian marine products. For the assessment year 1997-98, this assessee firm, while declaring total income of Rs. 31,81,180/-, claimed deduction under Section 80-O to the tune of Rs.21,84,302/-, being 50% of the net income of Rs. 43,68,604/- towards the service charges received from such foreign buyers. 38.1. In the assessment order dated 31.01.2000, the AO noted the explanation of this appellant regarding the services rendered in the following: …..As per the detailed letter dated 22.11.1999 filed by the assessee the services rendered by it to the foreign enterprises are by way of : 1. To impact commercial and technical knowledge, experience and skill in the field of Frozen Food/Marine products to enable them to formulate their policies and take decision for import thereof from India; 2. To locate reliable sources of quality and assured supply of Frozen Seafood/Marine products and communicate the assessees expert opinion and advise to them to enable them to take decisions for import from India; 3. To keep close liaison with agencies such as EIA/Llyods/ SGS especially for organoleptic/bacteriological analysis and communicate the results of inspection along with assessees expert comments and advice. This also enables the foreign enterprises to take decisions for import from various sources from several countries available to them. 4. Making available full and detailed analysis of the seafood situation and prices for the above purpose. 5. To advise and keep informed the foreign buyers of the latest trends/process applications in manufacturing and all valuable commercial and economic information which will directly and indirectly assist them to organize, develop, control on regulate their import business from India. 6. To assist foreign buyers in negotiating and finalizing prices for Indian marine products and advise them of all rules and regulations and other related information for such import. In the case of this appellant, again, the AO was of the view that the services were rendered in India and the service charges received from the foreign enterprises in respect of such services did not qualify for deduction under Section 80-O. 38.2. In the case of this appellant, the Appellate Authority examined the terms of agreements with the foreign enterprises in detail and noted the contents thereof in the following paragraphs:- 2.The appellant had entered into agreement with various foreign enterprises for render the following services. Article 2 of the agreement entered into with Neptune Fisheries Ind. USA reads as under:- (a) Locating reliable source of quality and assured supply of frozen sea-foods/marine products for the purpose of import by NEPTUNE and communicate its expert opinion and advice to the NEPTUNE; (b) In addition to the above services rendered by Laxmi it will also keep a close liason with agencies such as ELA/LLOYDS/SGS especially for organolotic/acteriological analysis and communicate the result of the inspection along with its expert comments and advice. (c) Making available full and detailed analysis of the sea food supply situation and prices; (d) To advise NEPTUNE and keep them informed of the latest trends/processes applications in manufacturing and of all valuable commercial and economic information about the markets, Government Policies, exchange fluctuations, banking laws which will directly or indirectly assist NEPTUNE to organize, develop control or regulate their import business from India. (e) To negotiate and finalise the prices for India Exporters of frozen marine products and to communicate such and other related information to NEPTUNE. Article 4 of the agreement states: LAXMI shall also do everything that is required to ensure highest standards of quality hygiene and freshness of products including supervision at various stages. 3. The agreement made with other principles (sic- principals) are also on similar lines. 38.3. In this case, of course, the Appellate Authority took note of various activities of the appellant with and for the buyer concerned and, while disallowing 20% of the service charges received from foreign enterprises towards the services rendered in India, allowed deduction under Section 80-O to the extent of the net income arising out of 80% of such charges received from foreign enterprises. 38.4. The order so passed by the Appellate Authority was challenged both by the appellant and by the revenue before ITAT in ITA No. 580/Coch/2004 and ITA No. 618/Coch/2004 respectively. The ITAT referred to its earlier decision in the case of the other assessee Ramnath & Co. (as referred to hereinabove) and following the same, allowed the appeal of the appellant and dismissed that of the revenue and thereby, allowed the claim of appellant for deduction in toto. 38.5. Although, from the fact sheet of this case, it does not appear if the agreements of this appellant also carried the default clauses as we have noticed in the lead case but, on all other major features, the agreements had been of the same nature and again, this appellant has also failed to bring any material on record to show if it had received any specific consideration referable to the activities envisaged by Section 80-O of the Act. In the given set of facts and circumstances, this appellant also turns out to be only a procuring agent and not beyond. Hence, this appeal also deserves to be dismissed. Conclusion | 0[ds]14.2. The aspect germane to the present case is that forerunner to the provision relating to deduction of tax on royalties etc., received from certain foreign companies, was Section 85-C in the Act of 1961, that was inserted by Act No.13 of 1966 w.e.f. 01.04.1966 and was placed in Chapter VII. The said Section 85-C and several other provisions of Chapter VII were omitted by Section 33, read with Third Schedule, item 14, of the Finance (No.2) Act, 1967. The reason for omission of the said Section 85-C was that similar provision, with revised requirements, came to be introduced by way of Section 80-O in the new Chapter VI-A - .14.3. Section 80-O as introduced in Chapter VI-A got several modifications/alterations in regard to the entities eligible to claim such deductions as also the extent (that is percentage) of admissible deduction, but the core of object remained that of encouraging the export of Indian technical know-how and augmentation of the foreign exchange reserves of the country. While the relief was originally admitted in Section 80-O for dealing with a foreign company only, but later on, dealing with a foreign Government or foreign enterprise was included and thereby, the scope of coverage and activities was substantially expanded. However, as noticed from the erstwhile Section 85-C and the originally inserted Section 80-O, any such agreement with the foreign entity required the approval of Central Government and this requirement was later on altered to that of the approval of CBDT. Various other features and aspects related with the development and operation of Section 80-O, as then existing, were dealt with by the two circulars referred to on behalf of the revenue that is, Circular No. 187 dated 23.12.1975 and Circular No. 253 dated 30.04.1979.14.4 There had been several other modifications of Section 80-O from time to time. The relevant aspects noticeable for the present purpose are that the extent of deduction under Section 80-O was also altered from time to time and it even came to be allowed 100 per cent. but, by the Finance Act, 1984, it was reduced to 50 per cent. of the referred income. Then, the requirement of approval by CBDT was substituted by Finance Act, 1988 to the approval by Chief Commissioner or Director General. However, by Finance (No. 2) Act of 1991, even that requirement was deleted. In fact, the Finance (No. 2) Act of 1991 brought about a sea of changes in Section 80- O whereby, first and second provisos were omitted and the above- mentioned clause (iii) of Explanation was inserted. The words or a person (other than a company) who is resident in India were also inserted by this very Finance (No. 2) Act of 1991 expanding the reach of Section 80-O even to non-corporate tax payers. Moreover, the earlier expressions technical services were also altered to technical or professional services. There is no gainsaying the fact that Finance (No. 2) Act of 1991 led to a considerable recasting of Section 80-O of the Act of 1961 with substantial expansion of its ambit and area of coverage. These amendments were made applicable from the assessment year 1992-93 onwards and obviously, this had been the reason that the assessees like the appellant, who had earlier been taking the benefit of deduction under Section 80HHC with reference to their earning of foreign exchange, attempted to shift, for the purpose of deduction, to this provision of Section 80-O.14.6 In summation of what has been noticed hereinabove, it turns out that with the objectives of giving impetus to the functioning of Indian industries to provide intellectual property or information concerning industrial, commercial or scientific knowledge to the foreign countries so as to augment the foreign exchange earnings of our country and at the same time, earning a goodwill of the Indian technical know-how in the foreign countries, the provisions like Section 85-C earlier and Section 80-O later were inserted to the Act of 1961. Noteworthy it is that from time to time, the ambit and sphere of Section 80-O were expanded and even the dealings with foreign Government or foreign enterprise were included in place of foreign company as initially provided. The requirement of approval by the Central Government of any such arrangement was also modified and was ultimately done away with. Significantly, while initially the benefit of Section 80-O was envisaged only for an Indian company but later on, it was also extended to a person other than a company, who is resident of India. The extent of deduction had also varied from time to time.14.7. Broadly speaking, a few major and important factors related with Section 80-O of the Act of 1961, with reference to its background and its development, make it clear that the tax incentive for imparting technical know-how and akin specialities from our country to the foreign countries ultimately took the shape in the manner that earning of foreign exchange, by way of imparting intellectual property, or furnishing the information concerning industrial, commercial, scientific knowledge, or rendering of technical or professional services to the foreign Government or foreign enterprise, was made eligible for deduction in computation of total income, to the tune of 50 per cent. of the income so received. The finer details like those occurring in Explanation (iii) of Section 80-O were also taken care of by providing that the services envisaged by Section 80-O ought to be rendered outside India but they may be rendered from India, while making it clear that the services which are rendered in India would not qualify for such a deduction.15.1. So far the decision in the case of B. Suresh (supra) is concerned, it does not appear necessary to dilate on the same because the question involved therein was entirely different that is, as to whether the foreign exchange earned by transferring the right of exploitation of films outside India by way of lease was admissible for deduction under Section 80HHC of the Act, where the department attempted to contend that movies/films were not goods. However, having regard to the submissions made, we may look at the ratio from the other cited decisions in requisite details.17.3. In view of above and with reference to several other decisions, in Dilip Kumar & Co., the Constitution Bench summed up the principles as follows:-66. To sum up, we answer the reference holding as under:66.1. Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification66.2. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the Revenue66.3. The ratio in Sun Export case is not correct and all the decisions which took similar view as in Sun Export case stand overruled.(emphasis in bold supplied)17.4. Obviously, the generalised, rather sweeping, proposition stated in the case of Sun Export Corporation (supra) as also in other cases that in the matters of taxation, when two views are possible, the one favourable to assessee has to be preferred, stands specifically disapproved by the Constitution Bench in Dilip Kumar & Co. (supra). It has been laid down by the Constitution Bench in no uncertain terms that exemption notification has to be interpreted strictly; the burden of proving its applicability is on the assessee; and in case of any ambiguity, the benefit thereof cannot be claimed by the subject/assessee, rather it would be interpreted in favour of the revenue.In this regard, we may observe that deductions, exemptions, rebates et cetera are the different species of incentives extended by the Act of 1961 . In other words, incentive is a generic term and deduction is one of its species; exemption is another. Furthermore, Section 80-O is only one of the provisions in the Act of 1961 dealing with incentive; and even as regards the incentive for earning or saving foreign exchange, there are other provisions in the Act, including Section 80HHC, whereunder the appellant was indeed taking benefit before the assessment year 1993–94.19. Without expanding unnecessarily on variegated provisions dealing with different incentives, suffice would be to notice that the proposition that incentive provisions must receive liberal interpretation or to say, leaning in favour of grant of relief to the assessee is not an approach countenanced by this Court. The law declared by the Constitution Bench in relation to exemption notification, proprio vigore, would apply to the interpretation and application of any akin proposition in the taxing statutes for exemption, deduction, rebate et al., which all are essentially the form of tax incentives given by the Government to incite or encourage or support any particular activity.20. The principles laid down by the Constitution Bench, when applied to incentive provisions like those for deduction, would also be that the burden lies on the assessee to prove its applicability to his case; and if there be any ambiguity in the deduction clause, the same is subject to strict interpretation with the result that the benefit of such ambiguity cannot be claimed by the assessee, rather it would be interpreted in favour of the revenue. In view of the Constitution Bench decision in Dilip Kumar & Co. (supra), the generalised observations in Baby Marine Exports (supra) with reference to a few other decisions, that a tax incentive provision must receive liberal interpretation, cannot be considered to be a sound statement of law; rather the applicable principles would be those enunciated in Wood Papers Ltd. (supra), which have been precisely approved by the Constitution Bench. Thus, at and until the stage of finding out eligibility to claim deduction, the ambit and scope of the provision for the purpose of its applicability cannot be expanded or widened and remains subject to strict interpretation but, once eligibility is decided in favour of the person claiming such deduction, it could be construed liberally in regard to other requirements, which may be formal or directory in nature.21. As noticed, Section 80-O of the Act has a unique purpose and hence, peculiarities of its own. Applying the aforesaid principles to an enquiry for the purpose of a claim of deduction under Section 80-O of the Act as applicable to the present case, evident it is that for the purpose of eligibility, the service or activity has to precisely conform to what has been envisaged by the provision read with its explanation; and the other requirements of receiving convertible foreign exchange etc., are also to be fulfilled. It is only after that stage is crossed and a particular activity falls within the ambit of Section 80-O, this provision will apply with full force and may be given liberal application. The basic question, therefore, would remain as to whether the suggested activity of appellant had been of rendering such service from India to its principals in foreign country which answers to the description provided by the provision. As regards this enquiry, nothing of any liberal approach is envisaged. The activity must strictly conform to the requirements of Section 80-O of the Act.In our view, this part of criticism on behalf of the appellant on the approach of the High Court is entirely inapt and rather unnecessary. The referred observations in the majority view in Abhiram Singhs case occurred in relation to the interpretation of Section 123(3) of the Representation of People Act, 1951, which is aimed at curbing the unwarranted tendencies of communalism during election campaign and operates in entirely different fields of social welfare and ethos of democracy.22.2. In the setup of the present case, for a proper comprehension of the contents and text of the relevant provision of Section 80-O and Explanation (iii), which are carrying even the minute distinction of the expressions from India and in India, recourse to lexical semantics has been inevitable. However, in all fairness, the High Court has not only discussed semantics and dictionary meanings but, has equally looked at the object and purpose of Section 80-O of the Act. Hence, without further expanding on this issue, suffice it to say for the present purpose that the submissions against the approach of High Court with reference to the decision in Abhiram Singh (supra) does not advance the cause of the appellant.24.3. Though it has been painstakingly contended on behalf of the appellant that the decision in J.B. Boda & Co. should be decisive of the matter because even the brokerage of a reinsurance broker was held eligible for deduction under Section 80-O of the Act but, we are afraid, the said decision has no relevance whatsoever to the question at hand. The eligibility of the concerned services of reinsurance broker for the purpose of Section 80-O was not even a question involved therein. Needless to observe that the business of insurance carries its own peculiarities where the factor of risk involved is of unique significance; and any information and assessment of risk involved is itself a specialised task related with the business of insurance. In the fact sheet of the case in J.B. Boda & Co., in the every opening paragraph of judgment, it has been distinctively recorded that in respect of the insurance risk covered by Indian or foreign insurance companies, the appellant had been arranging for the reinsurance of a portion of risk with various reinsurance companies either directly or through foreign brokers. As regards, the services of the appellant with a broker in London, the Court noted, inter alia, that the appellant furnished all the details about the risk involved, the premium payable, the period of coverage and the portion of the risk which is sought to be reinsured. Without entering into further details of the activities of the said assessee, suffice it to say for the present purpose that the submissions on behalf of the appellant, as if the task of a broker of reinsurance is not technical in nature, could only be rejected as being not in conformity with the peculiarities of insurance business. In any case, as observed hereinbefore, this aspect does not require further elaboration because of entirely different question involved and decided by this Court in J.B. Boda & Co.25.4 The decision in E.P.W. Da Costa, again, does not make out any case in favour of the appellant.26.3. The case of B.L. Passi (supra) had not been a matter where nothing at all was on record. Indeed the letters exchanged by the assessee with the principal were on record, but the core of information that was allegedly supplied by the assessee to the foreign company, was not furnished, nor it was shown as to how that information was utilized by the foreign company and further, it was also not shown as to how the service charges payable to the assessee were computed when it was to get the payment on the basis of sale to be made by the foreign company. These crucial facts and factors directly co-relate with the requirements of Section 80-O of the Act; and upon the assessee failing to meet with such requirements, the claim for deduction under Section 80-O failed.28. As noticed, in the present case, in the very first place, the Assessing Officer, while dealing with the assessment in question, raised the queries and sought clarifications from the appellant with reference to the enunciations in the decision of this Court in the case of Continental Construction (supra). Then, the High Court has also noticed in its impugned judgment that this was one of the decisions relied upon by the learned counsel for the assessee. A comment has been made in the reply submissions on behalf of the revenue before us that the appellant has given up reliance on this decision for the reasons that the ratio essentially operates against the appellant. The response on behalf of the appellant has been that reference to this decision by revenue was entirely unnecessary for the same not being relied upon. Needless to observe that it being a decision of this Court, the ratio and the principle emanating therefrom cannot be ignored, whether relied upon by the appellant or not. Moreover, the said decision has been rendered by a 3-Judge Bench of this Court and has the force of a binding precedent. Having regard to the submissions made and the questions raised, reference to the decision of this Court in the case of Continental Construction (supra) is indispensable.28.4. A few aspects at once emerge from the said decision in Continental Construction that even under the provisions of Section 80-O of the Act as then existing, whereunder prior approval of CBDT was required to claim deduction, this Court underscored that deduction would be available only in relation to the consideration attributable to the information and services envisaged by Section 80-O and deduction would be granted to the extent of such consideration; and all these aspects were to be examined by the Assessing Officer while making the assessment.29. In the impugned judgment, the decision of High Court of Madras in the case of Khursheed Anwar (supra) has also been taken note of. Therein too, the claim for deduction under Section 80-O of the Act was declined for want of necessary material while observing that the benefit of Section 80-O cannot be claimed by merely asking for the same; it has to be substantiated with the requisite record. In the said case, on the query of the Assessing Officer, the assessee had submitted its reply but could not furnish the material so as to bring the case within the four corners of Section 80-O of the Act. The High Court, inter alia, observed as under (at p. 474 of ITR):Having regard to the above discussions, in our view, as the assessee has not established his claim for deduction by producing the relevant records, the Tribunal has erred in reversing the finding of the Commissioner of Income-tax (Appeals) rendered on the basis that the assessee was not entitled to the benefit in view of the fact that the commission received by the assessee was not for any of the activities mentioned in paragraph 4.1 of the order of the Commissioner of Income-tax (Appeals). There is absolutely no reason adduced by the Tribunal to reverse the said finding. We must also mention here that during the course of arguments, as we found that there were no supporting materials for the claim, we directed the assessees counsel to produce the materials, if any, available for our perusal. The learned counsel for the assessee, though had produced the explanation of the assessee dated March 28, 1998, he was unable to produce any materials to sustain any of the contentions made in the said letter. In the absence of any materials to show that what was passed on to the foreign enterprise was the information concerning with commercial or technical or scientific aid, merely because an agreement is entered into between the assessee and the foreign enterprise, we are not inclined to accept the claim of deduction under section 80-O of the Act. Accordingly, the second substantial question of law is answered in favour of the revenue and against the assessee. The tax case appeal is allowed in part. No costs.. From the decisions aforesaid, it could be immediately culled out that for bringing any particular foreign exchange receipt within the ambit of Section 80-O for deduction, it must be a consideration attributable to information and service contemplated by Section 80-O; and in case of a contract involving multiple or manifold activities and obligations, every consideration received therein in foreign exchange will not ipso facto fall within the ambit of Section 80-O. It has to be attributable to the information or service contemplated by the provision and only that part of foreign exchange receipt, which is so attributable to the activity contemplated by Section 80-O, would qualify for claiming deduction. Such enquiry is required to be made by the Assessing Officer; and for the purpose of this imperative enquiry, requisite material ought to be placed by the assessee to co-relate the foreign exchange receipt with information/service referable to Section 80-O. Evidently, such an enquiry by the Assessing Officer could be made only if concrete material is placed on record to show the requisite co- relation.31. Coming to the facts of the present case, the agreements of the appellant with the foreign entities primarily show that the appellant was to locate the source of supply of the referred merchandise and inform the principals; to keep liaison with the agencies carrying out organoleptic/bacteriological analysis and communicate the result of inspection; to make available to the foreign principals the analysis of seafood supply situation and prices; and to keep the foreign principals informed of the latest trends in the market and also to negotiate and finalise the prices. As per the agreements, in lieu of such services, the appellant was to receive the agreed commission on the invoice amounts.32. In contrast to what has been observed in the cases of J.B. Boda & Co. (advising on the risk factor related to the proposed insurance/reinsurance) and E.P.W. Da Costa (dealing with statistical analysis of data collected), what turns out as regards the activities/services of the appellant is that the appellant was essentially to ensure supply of enough quantity of good quality merchandise in proper packing and at competitive prices to the satisfaction of the principals. This has essentially been the job of a procuring agent. Though the expressions expert information and advice, analysis, technical guidance etc., have been used in the agreements but, these expressions cannot be read out of context and de hors the purpose of the agreement. All the clauses of the agreements read together make it absolutely clear that the appellant was merely a procuring agent and it was his responsibility to ensure that proper goods are supplied in proper packing to the satisfaction of the principal. All other services or activities mentioned in the agreements were only incidental to its main functioning as agent. Significantly, the payment to the appellant, whatever label it might have carried, was only on the basis of the amount of invoice pertaining to the goods. There had not been any provision for any specific payment referable to the so-called analysis or technical guidance or advice. Viewed from any angle, the services of the appellant were nothing but of an agent, who was procuring the merchandise for its principals; and such services by the appellant, as agent, were rendered in India. Even if certain information was sent by the assessee to the principals, the information did not fall in the category of such professional services or information which could justify its claim for deduction under Section 80-O of the Act. In other words, in the holistic view of the terms of the agreements, we have not an iota of doubt that the appellant was only a procuring agent, as rightly described by the High Court.33.1. In both the agreements, the default clauses make it more than clear that if the quality of goods was found to be unsatisfactory to the principals after inspection in their respective countries, they shall have no responsibility to pay the agents fees. If at all it had been a matter of the appellant furnishing some technical or material information which served the foreign enterprises in making the decision for procurement, in the ordinary circumstances, after completion of such service and its utilization by the foreign enterprises, the appellant was likely to receive the professional service charges for furnishing such information but, contrary and converse to it, the agreements provide for no payment to the appellant in case of principal being dissatisfied with goods. These default clauses effectively demolish the case of the appellant and fortify the submissions of the revenue that the appellant was merely a procuring agent and nothing more.34. The matter can be viewed from yet another angle, as indicated by the High Court in the last paragraph of its judgment. If at all it be assumed that out of various tasks mentioned in the agreements, some of them involved such services which answered to the requirements of Section 80- O, it was definitely required of the appellant to establish as to what had been such information of special nature or of expertise that was given by it and how the same was utilised, if at all, by the foreign enterprises; and how much of the foreign exchange receipt was attributable to such special service. Obviously, the appellant did not supply such particulars. As noticed, the High Court posed a pointed query to the learned counsel appearing for the appellant as to whether all the services mentioned in the agreement would come within the purview of Section 80-O. The cryptic response to this query on behalf to the appellant had been that if the recipient of services is situated outside, all the services rendered by the assessee in terms of the agreement come within the sweep of the provision. It was specifically contended on behalf of the appellant that establishing which of its services qualifies for the deduction is of no consequence, rather unnecessary. In our view, this response was not in conformity with the requirements of Section 80-O of the Act, as explained and applied by this Court in Continental Construction and in B. L. Passi (supra) as also as applied by Madras High Court in Khursheed Anwar (supra). Rather, this stand, in our view, puts the final curtain on the appellants case because most of the services in the agreements in question were those of an agent ensuring supply; and if any part of the services co-related with Section 80-O, the particulars were of utmost significance and were fundamentally necessary which the appellant had never supplied. Merely for having a contract with a foreign enterprise and mere earning foreign exchange does not ipso facto lead to the application of Section 80-O of the Act.35. The effect of Circular No.700 dated 23.03.1995 is only to the extent that once the service is rendered from India, even if its ultimate use by the foreign enterprise occurs in India, the matter may not go out of Section 80- O of the Act. This clarification is in tune with the nature of this provision meant for extending incentive but it does not do away with the basic requirements that to qualify for deduction under Section 80-O, the service must be rendered from India to foreign enterprise and the nature of service ought to be as delineated in Section 80-O. Ultimate use of the service could be in India, as illustrated by the case of E.P.W. Da Costa (supra) and by the cases of Li & Fung and Chakiath Agencies (supra) that were cited before the High Court. However, the claim of the appellant fails at the threshold for the reasons foregoing. Circular No.700 dated 23.03.1995 is neither of any application to this case nor of any assistance to the appellant. The appellant is not entitled to claim deduction under Section 80-O of the Act.36. For what we have discussed hereinabove, it is also apparent that the Appellate Authority as also the ITAT had viewed the present case from an altogether wrong angle. As noticed, the Appellate Authority even did not comprehend the observations in E.P.W. Da Costa (supra) and assumed that every information is scientific knowledge. On facts, the Appellate Authority observed that even if acting as agent of the foreign enterprises, the appellant was locating the sources of frozen seafoods, bringing the foreign enterprises in contact with the manufacturers or processors of seafood, and negotiating with the local packers; and these activities, though carried out in India, had been on behalf of the foreign enterprises. The ITAT, though took note of different services contemplated by the agreements in question and even observed that the clauses like those requiring the appellant to settle the claim with manufacturers might be the services rendered in India but then, proceeded to assume, without any cogent material on record, that other services were rendered from India and on that basis, the foreign party took its decision. Even in this regard, the questions relevant and germane to the enquiry were not even gone into inasmuch as, it was not examined as to what and which part of the consideration was attributable to the services envisaged by Section 80-O of the Act, which were rendered from India. Therefore, the findings of the Appellate Authority and ITAT, being based on irrelevant considerations while ignoring the relevant aspects, were neither of binding nature nor could have been decisive of the matter. Hence, neither anything turns upon the submissions made on behalf of the appellant with reference to the decision in K. Ravindranathan Nair (supra) nor this aspect requires any further discussion.37. In our view, the High Court has rightly analysed the entire matter with reference to the relevant questions and has rightly proceeded on the law applicable to the case. The impugned judgment calls for no interference.The appellant M/s Laxmi Agencies - the appeal arising out of SLP (Civil) No.23699 of 2016 .38.5. Although, from the fact sheet of this case, it does not appear if the agreements of this appellant also carried the default clauses as we have noticed in the lead case but, on all other major features, the agreements had been of the same nature and again, this appellant has also failed to bring any material on record to show if it had received any specific consideration referable to the activities envisaged by Section 80-O of the Act. In the given set of facts and circumstances, this appellant also turns out to be only a procuring agent and not beyond. Hence, this appeal also deserves to be dismissed. | 0 | 31,483 | 5,449 | ### Instruction:
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which were rendered from India. Therefore, the findings of the Appellate Authority and ITAT, being based on irrelevant considerations while ignoring the relevant aspects, were neither of binding nature nor could have been decisive of the matter. Hence, neither anything turns upon the submissions made on behalf of the appellant with reference to the decision in K. Ravindranathan Nair (supra) nor this aspect requires any further discussion. 37. In our view, the High Court has rightly analysed the entire matter with reference to the relevant questions and has rightly proceeded on the law applicable to the case. The impugned judgment calls for no interference. The appellant M/s Laxmi Agencies - the appeal arising out of SLP (Civil) No.23699 of 2016 . 38. This appeal involves similar claim of the other assessee firm M/s Laxmi Agencies, said to be engaged in similar business of rendering services to foreign buyers of Indian marine products. For the assessment year 1997-98, this assessee firm, while declaring total income of Rs. 31,81,180/-, claimed deduction under Section 80-O to the tune of Rs.21,84,302/-, being 50% of the net income of Rs. 43,68,604/- towards the service charges received from such foreign buyers. 38.1. In the assessment order dated 31.01.2000, the AO noted the explanation of this appellant regarding the services rendered in the following: …..As per the detailed letter dated 22.11.1999 filed by the assessee the services rendered by it to the foreign enterprises are by way of : 1. To impact commercial and technical knowledge, experience and skill in the field of Frozen Food/Marine products to enable them to formulate their policies and take decision for import thereof from India; 2. To locate reliable sources of quality and assured supply of Frozen Seafood/Marine products and communicate the assessees expert opinion and advise to them to enable them to take decisions for import from India; 3. To keep close liaison with agencies such as EIA/Llyods/ SGS especially for organoleptic/bacteriological analysis and communicate the results of inspection along with assessees expert comments and advice. This also enables the foreign enterprises to take decisions for import from various sources from several countries available to them. 4. Making available full and detailed analysis of the seafood situation and prices for the above purpose. 5. To advise and keep informed the foreign buyers of the latest trends/process applications in manufacturing and all valuable commercial and economic information which will directly and indirectly assist them to organize, develop, control on regulate their import business from India. 6. To assist foreign buyers in negotiating and finalizing prices for Indian marine products and advise them of all rules and regulations and other related information for such import. In the case of this appellant, again, the AO was of the view that the services were rendered in India and the service charges received from the foreign enterprises in respect of such services did not qualify for deduction under Section 80-O. 38.2. In the case of this appellant, the Appellate Authority examined the terms of agreements with the foreign enterprises in detail and noted the contents thereof in the following paragraphs:- 2.The appellant had entered into agreement with various foreign enterprises for render the following services. Article 2 of the agreement entered into with Neptune Fisheries Ind. USA reads as under:- (a) Locating reliable source of quality and assured supply of frozen sea-foods/marine products for the purpose of import by NEPTUNE and communicate its expert opinion and advice to the NEPTUNE; (b) In addition to the above services rendered by Laxmi it will also keep a close liason with agencies such as ELA/LLOYDS/SGS especially for organolotic/acteriological analysis and communicate the result of the inspection along with its expert comments and advice. (c) Making available full and detailed analysis of the sea food supply situation and prices; (d) To advise NEPTUNE and keep them informed of the latest trends/processes applications in manufacturing and of all valuable commercial and economic information about the markets, Government Policies, exchange fluctuations, banking laws which will directly or indirectly assist NEPTUNE to organize, develop control or regulate their import business from India. (e) To negotiate and finalise the prices for India Exporters of frozen marine products and to communicate such and other related information to NEPTUNE. Article 4 of the agreement states: LAXMI shall also do everything that is required to ensure highest standards of quality hygiene and freshness of products including supervision at various stages. 3. The agreement made with other principles (sic- principals) are also on similar lines. 38.3. In this case, of course, the Appellate Authority took note of various activities of the appellant with and for the buyer concerned and, while disallowing 20% of the service charges received from foreign enterprises towards the services rendered in India, allowed deduction under Section 80-O to the extent of the net income arising out of 80% of such charges received from foreign enterprises. 38.4. The order so passed by the Appellate Authority was challenged both by the appellant and by the revenue before ITAT in ITA No. 580/Coch/2004 and ITA No. 618/Coch/2004 respectively. The ITAT referred to its earlier decision in the case of the other assessee Ramnath & Co. (as referred to hereinabove) and following the same, allowed the appeal of the appellant and dismissed that of the revenue and thereby, allowed the claim of appellant for deduction in toto. 38.5. Although, from the fact sheet of this case, it does not appear if the agreements of this appellant also carried the default clauses as we have noticed in the lead case but, on all other major features, the agreements had been of the same nature and again, this appellant has also failed to bring any material on record to show if it had received any specific consideration referable to the activities envisaged by Section 80-O of the Act. In the given set of facts and circumstances, this appellant also turns out to be only a procuring agent and not beyond. Hence, this appeal also deserves to be dismissed. Conclusion
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and fortify the submissions of the revenue that the appellant was merely a procuring agent and nothing more.34. The matter can be viewed from yet another angle, as indicated by the High Court in the last paragraph of its judgment. If at all it be assumed that out of various tasks mentioned in the agreements, some of them involved such services which answered to the requirements of Section 80- O, it was definitely required of the appellant to establish as to what had been such information of special nature or of expertise that was given by it and how the same was utilised, if at all, by the foreign enterprises; and how much of the foreign exchange receipt was attributable to such special service. Obviously, the appellant did not supply such particulars. As noticed, the High Court posed a pointed query to the learned counsel appearing for the appellant as to whether all the services mentioned in the agreement would come within the purview of Section 80-O. The cryptic response to this query on behalf to the appellant had been that if the recipient of services is situated outside, all the services rendered by the assessee in terms of the agreement come within the sweep of the provision. It was specifically contended on behalf of the appellant that establishing which of its services qualifies for the deduction is of no consequence, rather unnecessary. In our view, this response was not in conformity with the requirements of Section 80-O of the Act, as explained and applied by this Court in Continental Construction and in B. L. Passi (supra) as also as applied by Madras High Court in Khursheed Anwar (supra). Rather, this stand, in our view, puts the final curtain on the appellants case because most of the services in the agreements in question were those of an agent ensuring supply; and if any part of the services co-related with Section 80-O, the particulars were of utmost significance and were fundamentally necessary which the appellant had never supplied. Merely for having a contract with a foreign enterprise and mere earning foreign exchange does not ipso facto lead to the application of Section 80-O of the Act.35. The effect of Circular No.700 dated 23.03.1995 is only to the extent that once the service is rendered from India, even if its ultimate use by the foreign enterprise occurs in India, the matter may not go out of Section 80- O of the Act. This clarification is in tune with the nature of this provision meant for extending incentive but it does not do away with the basic requirements that to qualify for deduction under Section 80-O, the service must be rendered from India to foreign enterprise and the nature of service ought to be as delineated in Section 80-O. Ultimate use of the service could be in India, as illustrated by the case of E.P.W. Da Costa (supra) and by the cases of Li & Fung and Chakiath Agencies (supra) that were cited before the High Court. However, the claim of the appellant fails at the threshold for the reasons foregoing. Circular No.700 dated 23.03.1995 is neither of any application to this case nor of any assistance to the appellant. The appellant is not entitled to claim deduction under Section 80-O of the Act.36. For what we have discussed hereinabove, it is also apparent that the Appellate Authority as also the ITAT had viewed the present case from an altogether wrong angle. As noticed, the Appellate Authority even did not comprehend the observations in E.P.W. Da Costa (supra) and assumed that every information is scientific knowledge. On facts, the Appellate Authority observed that even if acting as agent of the foreign enterprises, the appellant was locating the sources of frozen seafoods, bringing the foreign enterprises in contact with the manufacturers or processors of seafood, and negotiating with the local packers; and these activities, though carried out in India, had been on behalf of the foreign enterprises. The ITAT, though took note of different services contemplated by the agreements in question and even observed that the clauses like those requiring the appellant to settle the claim with manufacturers might be the services rendered in India but then, proceeded to assume, without any cogent material on record, that other services were rendered from India and on that basis, the foreign party took its decision. Even in this regard, the questions relevant and germane to the enquiry were not even gone into inasmuch as, it was not examined as to what and which part of the consideration was attributable to the services envisaged by Section 80-O of the Act, which were rendered from India. Therefore, the findings of the Appellate Authority and ITAT, being based on irrelevant considerations while ignoring the relevant aspects, were neither of binding nature nor could have been decisive of the matter. Hence, neither anything turns upon the submissions made on behalf of the appellant with reference to the decision in K. Ravindranathan Nair (supra) nor this aspect requires any further discussion.37. In our view, the High Court has rightly analysed the entire matter with reference to the relevant questions and has rightly proceeded on the law applicable to the case. The impugned judgment calls for no interference.The appellant M/s Laxmi Agencies - the appeal arising out of SLP (Civil) No.23699 of 2016 .38.5. Although, from the fact sheet of this case, it does not appear if the agreements of this appellant also carried the default clauses as we have noticed in the lead case but, on all other major features, the agreements had been of the same nature and again, this appellant has also failed to bring any material on record to show if it had received any specific consideration referable to the activities envisaged by Section 80-O of the Act. In the given set of facts and circumstances, this appellant also turns out to be only a procuring agent and not beyond. Hence, this appeal also deserves to be dismissed.
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Commissioner Of Income-Tax (Central) Calcutta Vs. India Discount Co. Ltd | all liable to tax. The High Court thereafter addressed itself to the real issue between the parties ultimately held that the amount of Rs. 43,925 was not liable to tax. This appeal is brought on behalf of the Commissioner of Income-tax against the judgment of the High Court dated January 6, 1965 by a certificate granted under Section 66A (2) of the Act.2. It is necessary that the question referred to by the High Court should be reframed in the following manner in order to bring out the real point in controversy between the parties:"Whether in the facts and circumstances of the case the assessee had purchased the arrears of dividend? If so whether the said sum of Rs. 43,925 could at all be assessed either as dividend or as profit?"3. It is manifest that dividends declared by Kedarnath Jute Manufacturing Co., between the years 1936 and 1945 were the property of the persons whose names stood on the share register on the relevant dates. When a company declares dividend the same can only be paid to the person who is then the registered holder. A purchaser of shares becomes entitled to all dividends declared since his purchase but not before. If the purchase is made on the eve of declaration of dividend but the purchaser does not get his name mutated in the records of the company in time to have the dividend-warrant issued in his own name he is entitled to call upon his vendor to make over the dividend to him if and when received. It is well settled that after a sale of the shares and so long as the purchaser does not get his name registered, the vendor is for certain purposes considered a trustee for the purchaser of the rights attaching to the shares or occurring thereon, including the voting rights. In the present case there was a contract between the assessee and the registered shareholders to sell the shares to the assessee with arrear dividends. In other words the assessee entered into the contract with the registered shareholders not only to purchase share scripts but the dividends which had been declared but not collected by him or paid over to shareholders. As the dividends had been declared long ago there was no uncertainty as the to the exact amount receivable in respect of them. It is, therefore, clear that both the purchase and the vendor knew exactly what sum of money would come to the vendor by way of such dividend. In other words the purchase consideration included the amount of the arrear dividends and as the dividends had been declared long ago there was no uncertainty as to the exact amount receivable in respect of them.The existence of a contract binding the vendors to make over to the purchaser the arrear dividends clearly implied that the price paid by the purchaser was not only for the value of the share scrips but also for the sum of Rs. 43,925 which wad going to be realised in the form of arrear dividends by the purchaser.The High Court held upon an examination of the evidence that such an agreement implied that the value of Rs. 9-8-0 and Rs. 9-4-0 per share as settled into the brokers bills was not the real value of the share scrips alone but also included the element of the arrear dividends agreed to be receivable by the purchaser. The legal position, therefore, is that the arrear dividends were not claimable by the purchaser by virtue of his right as such purchaser and could not become his income from the shares. He was to get the same because the vendor had contracted to pass the arrear dividends on to him. They were the income of the vendors, i.e., the registered holders but they could not become the income of the purchaser. In fact the assessee had purchased the amount of arrear dividends for a price which was included in the total consideration of Rs. 1,12,575.What the assessee acquired in the form of share scrips represented its stock-in-trade, which consisted of the shares and the dividends potential which had to be realised. In this state of facts it is manifest that the assessee paid the amount of Rs. 1,12,575 not only for the share scrips but also for the arrear dividends which was inextricably connected with the purchase of the share scrips. In our opinion the High Court rightly held that the amount of Rs. 43,925 was not income which could be assessed in the hands of the assessee.4. It was said that the assessee had itself credited the amount of Rs. 43,925 to the profit and loss appropriation account and thereafter transferred the same to a reserve fund in the accounting year ending September 30, 1966. No adjustment was made in the share purchase account on of the receipt of dividend. But it is well established that a receipt which in law cannot be regarded as income cannot become so merely because the assessee erroneously credited it to the profit and loss account. (See Commissioner of Income-tax Bombay City I. v. M/s. Shoorji Vallabhadas and Co., (1962) 46 ITR 144 (SC).) The assesses case, had all along been that the amount of arrear dividends received could not be treated as income of the assessee liable to tax for the assessment year 1956-57. As we have already shown the consideration paid by the assessee was given not only for the shares but also for share dividends amounting to Rs. 43,925 and the amount of Rs. 1,12,575 was paid not only for the share scrips but also for the arrear dividends. In other words there was capital purchase by the assessee of the shares together with arrear dividends due on the shares for the years 1936 to 1945.It is therefore not possible to treat the payment of Rs. 43.925 as income liable to tax either as profit under Section 10 of the Act or as dividend under Section 12 of the Act. | 0[ds]3. It is manifest that dividends declared by Kedarnath Jute Manufacturing Co., between the years 1936 and 1945 were the property of the persons whose names stood on the share register on the relevant dates. When a company declares dividend the same can only be paid to the person who is then the registered holder. A purchaser of shares becomes entitled to all dividends declared since his purchase but not before. If the purchase is made on the eve of declaration of dividend but the purchaser does not get his name mutated in the records of the company in time to have the dividend-warrant issued in his own name he is entitled to call upon his vendor to make over the dividend to him if and when received. It is well settled that after a sale of the shares and so long as the purchaser does not get his name registered, the vendor is for certain purposes considered a trustee for the purchaser of the rights attaching to the shares or occurring thereon, including the voting rights. In the present case there was a contract between the assessee and the registered shareholders to sell the shares to the assessee with arrear dividends. In other words the assessee entered into the contract with the registered shareholders not only to purchase share scripts but the dividends which had been declared but not collected by him or paid over to shareholders. As the dividends had been declared long ago there was no uncertainty as the to the exact amount receivable in respect of them. It is, therefore, clear that both the purchase and the vendor knew exactly what sum of money would come to the vendor by way of such dividend. In other words the purchase consideration included the amount of the arrear dividends and as the dividends had been declared long ago there was no uncertainty as to the exact amount receivable in respect ofexistence of a contract binding the vendors to make over to the purchaser the arrear dividends clearly implied that the price paid by the purchaser was not only for the value of the share scrips but also for the sum of Rs. 43,925 which wad going to be realised in the form of arrear dividends by theHigh Court held upon an examination of the evidence that such an agreement implied that the value of Rs. 9-8-0 and Rs. 9-4-0 per share as settled into the brokers bills was not the real value of the share scrips alone but also included the element of the arrear dividends agreed to be receivable by the purchaser. The legal position, therefore, is that the arrear dividends were not claimable by the purchaser by virtue of his right as such purchaser and could not become his income from the shares. He was to get the same because the vendor had contracted to pass the arrear dividends on to him. They were the income of the vendors, i.e., the registered holders but they could not become the income of the purchaser. In fact the assessee had purchased the amount of arrear dividends for a price which was included in the total consideration of Rs.the assessee acquired in the form of share scrips represented its stock-in-trade, which consisted of the shares and the dividends potential which had to be realised. In this state of facts it is manifest that the assessee paid the amount of Rs. 1,12,575 not only for the share scrips but also for the arrear dividends which was inextricably connected with the purchase of the share scrips. In our opinion the High Court rightly held that the amount of Rs. 43,925 was not income which could be assessed in the hands of the assessee.4. It was said that the assessee had itself credited the amount of Rs. 43,925 to the profit and loss appropriation account and thereafter transferred the same to a reserve fund in the accounting year ending September 30, 1966. No adjustment was made in the share purchase account on of the receipt of dividend. But it is well established that a receipt which in law cannot be regarded as income cannot become so merely because the assessee erroneously credited it to the profit and loss | 0 | 1,832 | 748 | ### Instruction:
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all liable to tax. The High Court thereafter addressed itself to the real issue between the parties ultimately held that the amount of Rs. 43,925 was not liable to tax. This appeal is brought on behalf of the Commissioner of Income-tax against the judgment of the High Court dated January 6, 1965 by a certificate granted under Section 66A (2) of the Act.2. It is necessary that the question referred to by the High Court should be reframed in the following manner in order to bring out the real point in controversy between the parties:"Whether in the facts and circumstances of the case the assessee had purchased the arrears of dividend? If so whether the said sum of Rs. 43,925 could at all be assessed either as dividend or as profit?"3. It is manifest that dividends declared by Kedarnath Jute Manufacturing Co., between the years 1936 and 1945 were the property of the persons whose names stood on the share register on the relevant dates. When a company declares dividend the same can only be paid to the person who is then the registered holder. A purchaser of shares becomes entitled to all dividends declared since his purchase but not before. If the purchase is made on the eve of declaration of dividend but the purchaser does not get his name mutated in the records of the company in time to have the dividend-warrant issued in his own name he is entitled to call upon his vendor to make over the dividend to him if and when received. It is well settled that after a sale of the shares and so long as the purchaser does not get his name registered, the vendor is for certain purposes considered a trustee for the purchaser of the rights attaching to the shares or occurring thereon, including the voting rights. In the present case there was a contract between the assessee and the registered shareholders to sell the shares to the assessee with arrear dividends. In other words the assessee entered into the contract with the registered shareholders not only to purchase share scripts but the dividends which had been declared but not collected by him or paid over to shareholders. As the dividends had been declared long ago there was no uncertainty as the to the exact amount receivable in respect of them. It is, therefore, clear that both the purchase and the vendor knew exactly what sum of money would come to the vendor by way of such dividend. In other words the purchase consideration included the amount of the arrear dividends and as the dividends had been declared long ago there was no uncertainty as to the exact amount receivable in respect of them.The existence of a contract binding the vendors to make over to the purchaser the arrear dividends clearly implied that the price paid by the purchaser was not only for the value of the share scrips but also for the sum of Rs. 43,925 which wad going to be realised in the form of arrear dividends by the purchaser.The High Court held upon an examination of the evidence that such an agreement implied that the value of Rs. 9-8-0 and Rs. 9-4-0 per share as settled into the brokers bills was not the real value of the share scrips alone but also included the element of the arrear dividends agreed to be receivable by the purchaser. The legal position, therefore, is that the arrear dividends were not claimable by the purchaser by virtue of his right as such purchaser and could not become his income from the shares. He was to get the same because the vendor had contracted to pass the arrear dividends on to him. They were the income of the vendors, i.e., the registered holders but they could not become the income of the purchaser. In fact the assessee had purchased the amount of arrear dividends for a price which was included in the total consideration of Rs. 1,12,575.What the assessee acquired in the form of share scrips represented its stock-in-trade, which consisted of the shares and the dividends potential which had to be realised. In this state of facts it is manifest that the assessee paid the amount of Rs. 1,12,575 not only for the share scrips but also for the arrear dividends which was inextricably connected with the purchase of the share scrips. In our opinion the High Court rightly held that the amount of Rs. 43,925 was not income which could be assessed in the hands of the assessee.4. It was said that the assessee had itself credited the amount of Rs. 43,925 to the profit and loss appropriation account and thereafter transferred the same to a reserve fund in the accounting year ending September 30, 1966. No adjustment was made in the share purchase account on of the receipt of dividend. But it is well established that a receipt which in law cannot be regarded as income cannot become so merely because the assessee erroneously credited it to the profit and loss account. (See Commissioner of Income-tax Bombay City I. v. M/s. Shoorji Vallabhadas and Co., (1962) 46 ITR 144 (SC).) The assesses case, had all along been that the amount of arrear dividends received could not be treated as income of the assessee liable to tax for the assessment year 1956-57. As we have already shown the consideration paid by the assessee was given not only for the shares but also for share dividends amounting to Rs. 43,925 and the amount of Rs. 1,12,575 was paid not only for the share scrips but also for the arrear dividends. In other words there was capital purchase by the assessee of the shares together with arrear dividends due on the shares for the years 1936 to 1945.It is therefore not possible to treat the payment of Rs. 43.925 as income liable to tax either as profit under Section 10 of the Act or as dividend under Section 12 of the Act.
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3. It is manifest that dividends declared by Kedarnath Jute Manufacturing Co., between the years 1936 and 1945 were the property of the persons whose names stood on the share register on the relevant dates. When a company declares dividend the same can only be paid to the person who is then the registered holder. A purchaser of shares becomes entitled to all dividends declared since his purchase but not before. If the purchase is made on the eve of declaration of dividend but the purchaser does not get his name mutated in the records of the company in time to have the dividend-warrant issued in his own name he is entitled to call upon his vendor to make over the dividend to him if and when received. It is well settled that after a sale of the shares and so long as the purchaser does not get his name registered, the vendor is for certain purposes considered a trustee for the purchaser of the rights attaching to the shares or occurring thereon, including the voting rights. In the present case there was a contract between the assessee and the registered shareholders to sell the shares to the assessee with arrear dividends. In other words the assessee entered into the contract with the registered shareholders not only to purchase share scripts but the dividends which had been declared but not collected by him or paid over to shareholders. As the dividends had been declared long ago there was no uncertainty as the to the exact amount receivable in respect of them. It is, therefore, clear that both the purchase and the vendor knew exactly what sum of money would come to the vendor by way of such dividend. In other words the purchase consideration included the amount of the arrear dividends and as the dividends had been declared long ago there was no uncertainty as to the exact amount receivable in respect ofexistence of a contract binding the vendors to make over to the purchaser the arrear dividends clearly implied that the price paid by the purchaser was not only for the value of the share scrips but also for the sum of Rs. 43,925 which wad going to be realised in the form of arrear dividends by theHigh Court held upon an examination of the evidence that such an agreement implied that the value of Rs. 9-8-0 and Rs. 9-4-0 per share as settled into the brokers bills was not the real value of the share scrips alone but also included the element of the arrear dividends agreed to be receivable by the purchaser. The legal position, therefore, is that the arrear dividends were not claimable by the purchaser by virtue of his right as such purchaser and could not become his income from the shares. He was to get the same because the vendor had contracted to pass the arrear dividends on to him. They were the income of the vendors, i.e., the registered holders but they could not become the income of the purchaser. In fact the assessee had purchased the amount of arrear dividends for a price which was included in the total consideration of Rs.the assessee acquired in the form of share scrips represented its stock-in-trade, which consisted of the shares and the dividends potential which had to be realised. In this state of facts it is manifest that the assessee paid the amount of Rs. 1,12,575 not only for the share scrips but also for the arrear dividends which was inextricably connected with the purchase of the share scrips. In our opinion the High Court rightly held that the amount of Rs. 43,925 was not income which could be assessed in the hands of the assessee.4. It was said that the assessee had itself credited the amount of Rs. 43,925 to the profit and loss appropriation account and thereafter transferred the same to a reserve fund in the accounting year ending September 30, 1966. No adjustment was made in the share purchase account on of the receipt of dividend. But it is well established that a receipt which in law cannot be regarded as income cannot become so merely because the assessee erroneously credited it to the profit and loss
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Durga Prasad Vs. Narayan Ramchandaani (D) Thr. Lrs | have been normally residing with the deceased tenant at the time of his/her death. The term used in the section is ‘heir’ which implies that not any of the family member residing with the tenant would succeed to the tenancy, but only the heirs of tenant normally residing with him/her. The words “normally residing with him” suggests that only those heirs would inherit the tenancy rights of deceased tenant who resided with him ordinarily in normal course and not temporarily. The legislative intent appears to be that only those heirs would inherit tenancy who normally resided with the tenant and not occasionally. In the present case, the appellant claims that he has been carrying on business in the property along with his deceased sister Lalita and had been ordinarily living with her because of the medical business they were running. The appellant being the brother of deceased-Lalita had no reason to normally reside with his married sister. Be it noted, in her written statement filed in the release application, Lalita has not averred that her brother-appellant Durga Prasad was living with her and that he was taking care of her. As rightly held by the Courts below, Durga Prasad is neither a ‘heir’ within the meaning of Section 3(a) nor fall under the definition of ‘family’ as per Section 3(g) of the Act.15. As discussed earlier, originally Lalita’s father-in-law-Hem Ram Sharma took the premises on rent in the year 1940. After his death, Lalita Devi’s husband-Baldev became the tenant of the suit property and after Baldev’s death, Lalita become the tenant of the suit property. During the pendency of the appeal before the First Appellate Court, Lalita expired on 06.07.2013. Thereafter, the respondent-landlord moved a substitution application before the appellate court to substitute the appellant who is the real brother of deceased-Lalita. On that application, the appellant was impleaded as a defendant-respondent in the said appeal. As pointed out by the High Court, the present appellant may have been ‘rightly’ or ‘wrongly’ substituted after the demise of his sister. Merely because the appellant has been substituted in the place of tenant-Lalita, the appellant cannot become a ‘heir’ who normally resided with the tenant Lalita.16. Learned counsel for the appellant placed reliance on Ganesh Trivedi (supra), wherein this Court found, as a matter of fact, that brother was residing in the tenanted premises and, therefore, tenancy rights will devolve upon him on the death of original tenant within the meaning of Section 3(a)(g) read with Section 12(1)(b) of the U.P. Act XIII of 1972. This is evident from the following observation made in paras (9) and (10) of judgment which are reproduced as under:“9. The brother of a tenant is not included in the definition of “family”. However, the present one is not a case where the tenant Suraj Prasad had during his lifetime taken up residence elsewhere and/or allowed the suit premises to be occupied by his brother. Deo Narain, being the real brother of late Suraj Prasad, the tenant, had come to stay with his brother and was residing along with him as such, even at the time of death of Suraj Prasad. It will not therefore be correct to say that applicability of clause (b) of sub-section (1) of Section 12 of the Act was attracted to the suit premises during the lifetime of Suraj Prasad and a deemed vacancy had occurred. On the death of Suraj Prasad tenancy rights devolved on Deo Narain, he being the only heir. He too became a “tenant” within the meaning of clause (a) of Section 3. The decision of the High Court cannot, therefore, be faulted.10. There is yet another reason why no interference with the impugned order of the High Court is called for. Shri Upadhyay, the learned counsel for Respondents 1 to 3 invited our attention to the pleadings and pointed out that admittedly the sale deed executed by Jagdamaba Prasad Awasthi in favour of Ganesh Trivedi, the appellant, contains recitals to the effect that the former owner-landlord was well aware of Deo Narain occupying the suit premises after the death of Suraj Prasad, that he was acknowledged by the landlord as tenant in the premises, and that rent was also paid by Deo Narain to the landlord under receipts issued by the landlord though Deo Narain had fallen into some arrears of rent at the time of sale of the suit premises in favour of the appellant. Such admissions made by Jagdamaba Prasad Awasthi are binding on Ganesh Trivedi, the appellant, inasmuch as the same are contained in the sale deed by which title has been derived by the appellant and thereunder the appellant has stepped into the shoes of the previous owner-landlord. Deo Narain’s status as tenant in occupation of the suit premises, cannot, therefore, be doubted or disputed by the appellant.”The aforesaid decision has been rendered in view of proven facts in the said case and, therefore, has no application to the facts of the present case.17. Upon appreciation of the facts and evidence, the first appellate court and the High Court rightly held that the appellant is neither an ‘heir’ as visualized under Section 3(a) of the U.P. Act XIII of 1972 nor ‘family’ within the meaning of Section 3(g) of the Act and that the appellant is in unauthorized occupation of the suit premises and is liable to be evicted. The High Court has directed the District Magistrate to pass appropriate orders under Section 16 of the U.P. Act XIII of 1972 on the release application of the landlord without further delay preferably within three weeks from the date of judgment of the High Court that is 09.03.2015. Father-in-law of Lalita had taken the suit premises on rent in the year 1940. In the facts and circumstances of the case, without relegating the matter to the District Magistrate to pass orders on the release application of the respondent-landlord, we deem it appropriate to direct the appellant to hand over vacant possession to the respondent-landlord. | 0[ds]10. In the present case, we are dealing with the case as to who would becomeon the death of Lalita. Hence, the definition ofis not relevant for the purposes of determining as to who would become tenant on the death of tenant Lalita. The only question falling for consideration is whether the appellant-brother of the tenant Lalita is anunder Section 3(a) of the U.P. Act XIII of 1972.is not defined in the Act.is a person who inherits or may inherit by law. Section 3(1)(f) of the Hindu Succession Act definesmeans any person, male or female, who is entitled to succeed to the property of an intestate under thishas to be given the same meaning as would be applicable to the general law of succession. In the present case, as pointed out by the High Court, the deceased tenant-Lalita being a hindu female, the devolution of tenancy will be determined under Section 15 of the Hindu Succession Act.In the present case, the suit property was taken on rent by the father-in-law of deceased tenant-Lalita that is Hem Ram Sharma and after his death, his son Baldev (husband of Lalita) became tenant of the suit property. Upon his death, Lalita became the tenant of the suit property. Upon death of Lalita, in terms of Section 15(2)(b) of the Hindu Succession Act, in the absence of any son or daughter of deceased Lalita, the tenancy would devolve upon the heirs of her husband. Since the appellant does not fall under the category ofhusband, the tenancy of the suit property will not devolve on him nor can he be called as anunder Section 3(a) of the U.P. Act XIII of 1972.Assuming, for the sake of arguments that the appellant is an heir of Lalita, for devolution of tenancy, on the death of Lalita, the appellant has to be awithin the meaning of Section 3(a) of the U.P. Act XIII of 1972. As per Section 3(a)(1), in the case of residential building, in the event of death of a tenant, for heirs to be treated as tenant, the statute requires them to prove that they have been normally residing with the deceased tenant at the time of his/her death. The term used in the section iswhich implies that not any of the family member residing with the tenant would succeed to the tenancy, but only the heirs of tenant normally residing with him/her. The wordssuggests that only those heirs would inherit the tenancy rights of deceased tenant who resided with him ordinarily in normal course and not temporarily. The legislative intent appears to be that only those heirs would inherit tenancy who normally resided with the tenant and not occasionally. In the present case, the appellant claims that he has been carrying on business in the property along with his deceased sister Lalita and had been ordinarily living with her because of the medical business they were running. The appellant being the brother of deceased-Lalita had no reason to normally reside with his married sister. Be it noted, in her written statement filed in the release application, Lalita has not averred that her brother-appellant Durga Prasad was living with her and that he was taking care of her. As rightly held by the Courts below, Durga Prasad is neither awithin the meaning of Section 3(a) nor fall under the definition ofas per Section 3(g) of the Act.Upon appreciation of the facts and evidence, the first appellate court and the High Court rightly held that the appellant is neither anas visualized under Section 3(a) of the U.P. Act XIII of 1972 norwithin the meaning of Section 3(g) of the Act and that the appellant is in unauthorized occupation of the suit premises and is liable to be evicted. The High Court has directed the District Magistrate to pass appropriate orders under Section 16 of the U.P. Act XIII of 1972 on the release application of the landlord without further delay preferably within three weeks from the date of judgment of the High Court that is 09.03.2015. Father-in-law of Lalita had taken the suit premises on rent in the year 1940. In the facts and circumstances of the case, without relegating the matter to the District Magistrate to pass orders on the release application of the respondent-landlord, we deem it appropriate to direct the appellant to hand over vacant possession to the respondent-landlord. | 0 | 4,090 | 826 | ### 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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have been normally residing with the deceased tenant at the time of his/her death. The term used in the section is ‘heir’ which implies that not any of the family member residing with the tenant would succeed to the tenancy, but only the heirs of tenant normally residing with him/her. The words “normally residing with him” suggests that only those heirs would inherit the tenancy rights of deceased tenant who resided with him ordinarily in normal course and not temporarily. The legislative intent appears to be that only those heirs would inherit tenancy who normally resided with the tenant and not occasionally. In the present case, the appellant claims that he has been carrying on business in the property along with his deceased sister Lalita and had been ordinarily living with her because of the medical business they were running. The appellant being the brother of deceased-Lalita had no reason to normally reside with his married sister. Be it noted, in her written statement filed in the release application, Lalita has not averred that her brother-appellant Durga Prasad was living with her and that he was taking care of her. As rightly held by the Courts below, Durga Prasad is neither a ‘heir’ within the meaning of Section 3(a) nor fall under the definition of ‘family’ as per Section 3(g) of the Act.15. As discussed earlier, originally Lalita’s father-in-law-Hem Ram Sharma took the premises on rent in the year 1940. After his death, Lalita Devi’s husband-Baldev became the tenant of the suit property and after Baldev’s death, Lalita become the tenant of the suit property. During the pendency of the appeal before the First Appellate Court, Lalita expired on 06.07.2013. Thereafter, the respondent-landlord moved a substitution application before the appellate court to substitute the appellant who is the real brother of deceased-Lalita. On that application, the appellant was impleaded as a defendant-respondent in the said appeal. As pointed out by the High Court, the present appellant may have been ‘rightly’ or ‘wrongly’ substituted after the demise of his sister. Merely because the appellant has been substituted in the place of tenant-Lalita, the appellant cannot become a ‘heir’ who normally resided with the tenant Lalita.16. Learned counsel for the appellant placed reliance on Ganesh Trivedi (supra), wherein this Court found, as a matter of fact, that brother was residing in the tenanted premises and, therefore, tenancy rights will devolve upon him on the death of original tenant within the meaning of Section 3(a)(g) read with Section 12(1)(b) of the U.P. Act XIII of 1972. This is evident from the following observation made in paras (9) and (10) of judgment which are reproduced as under:“9. The brother of a tenant is not included in the definition of “family”. However, the present one is not a case where the tenant Suraj Prasad had during his lifetime taken up residence elsewhere and/or allowed the suit premises to be occupied by his brother. Deo Narain, being the real brother of late Suraj Prasad, the tenant, had come to stay with his brother and was residing along with him as such, even at the time of death of Suraj Prasad. It will not therefore be correct to say that applicability of clause (b) of sub-section (1) of Section 12 of the Act was attracted to the suit premises during the lifetime of Suraj Prasad and a deemed vacancy had occurred. On the death of Suraj Prasad tenancy rights devolved on Deo Narain, he being the only heir. He too became a “tenant” within the meaning of clause (a) of Section 3. The decision of the High Court cannot, therefore, be faulted.10. There is yet another reason why no interference with the impugned order of the High Court is called for. Shri Upadhyay, the learned counsel for Respondents 1 to 3 invited our attention to the pleadings and pointed out that admittedly the sale deed executed by Jagdamaba Prasad Awasthi in favour of Ganesh Trivedi, the appellant, contains recitals to the effect that the former owner-landlord was well aware of Deo Narain occupying the suit premises after the death of Suraj Prasad, that he was acknowledged by the landlord as tenant in the premises, and that rent was also paid by Deo Narain to the landlord under receipts issued by the landlord though Deo Narain had fallen into some arrears of rent at the time of sale of the suit premises in favour of the appellant. Such admissions made by Jagdamaba Prasad Awasthi are binding on Ganesh Trivedi, the appellant, inasmuch as the same are contained in the sale deed by which title has been derived by the appellant and thereunder the appellant has stepped into the shoes of the previous owner-landlord. Deo Narain’s status as tenant in occupation of the suit premises, cannot, therefore, be doubted or disputed by the appellant.”The aforesaid decision has been rendered in view of proven facts in the said case and, therefore, has no application to the facts of the present case.17. Upon appreciation of the facts and evidence, the first appellate court and the High Court rightly held that the appellant is neither an ‘heir’ as visualized under Section 3(a) of the U.P. Act XIII of 1972 nor ‘family’ within the meaning of Section 3(g) of the Act and that the appellant is in unauthorized occupation of the suit premises and is liable to be evicted. The High Court has directed the District Magistrate to pass appropriate orders under Section 16 of the U.P. Act XIII of 1972 on the release application of the landlord without further delay preferably within three weeks from the date of judgment of the High Court that is 09.03.2015. Father-in-law of Lalita had taken the suit premises on rent in the year 1940. In the facts and circumstances of the case, without relegating the matter to the District Magistrate to pass orders on the release application of the respondent-landlord, we deem it appropriate to direct the appellant to hand over vacant possession to the respondent-landlord.
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### Explanation:
10. In the present case, we are dealing with the case as to who would becomeon the death of Lalita. Hence, the definition ofis not relevant for the purposes of determining as to who would become tenant on the death of tenant Lalita. The only question falling for consideration is whether the appellant-brother of the tenant Lalita is anunder Section 3(a) of the U.P. Act XIII of 1972.is not defined in the Act.is a person who inherits or may inherit by law. Section 3(1)(f) of the Hindu Succession Act definesmeans any person, male or female, who is entitled to succeed to the property of an intestate under thishas to be given the same meaning as would be applicable to the general law of succession. In the present case, as pointed out by the High Court, the deceased tenant-Lalita being a hindu female, the devolution of tenancy will be determined under Section 15 of the Hindu Succession Act.In the present case, the suit property was taken on rent by the father-in-law of deceased tenant-Lalita that is Hem Ram Sharma and after his death, his son Baldev (husband of Lalita) became tenant of the suit property. Upon his death, Lalita became the tenant of the suit property. Upon death of Lalita, in terms of Section 15(2)(b) of the Hindu Succession Act, in the absence of any son or daughter of deceased Lalita, the tenancy would devolve upon the heirs of her husband. Since the appellant does not fall under the category ofhusband, the tenancy of the suit property will not devolve on him nor can he be called as anunder Section 3(a) of the U.P. Act XIII of 1972.Assuming, for the sake of arguments that the appellant is an heir of Lalita, for devolution of tenancy, on the death of Lalita, the appellant has to be awithin the meaning of Section 3(a) of the U.P. Act XIII of 1972. As per Section 3(a)(1), in the case of residential building, in the event of death of a tenant, for heirs to be treated as tenant, the statute requires them to prove that they have been normally residing with the deceased tenant at the time of his/her death. The term used in the section iswhich implies that not any of the family member residing with the tenant would succeed to the tenancy, but only the heirs of tenant normally residing with him/her. The wordssuggests that only those heirs would inherit the tenancy rights of deceased tenant who resided with him ordinarily in normal course and not temporarily. The legislative intent appears to be that only those heirs would inherit tenancy who normally resided with the tenant and not occasionally. In the present case, the appellant claims that he has been carrying on business in the property along with his deceased sister Lalita and had been ordinarily living with her because of the medical business they were running. The appellant being the brother of deceased-Lalita had no reason to normally reside with his married sister. Be it noted, in her written statement filed in the release application, Lalita has not averred that her brother-appellant Durga Prasad was living with her and that he was taking care of her. As rightly held by the Courts below, Durga Prasad is neither awithin the meaning of Section 3(a) nor fall under the definition ofas per Section 3(g) of the Act.Upon appreciation of the facts and evidence, the first appellate court and the High Court rightly held that the appellant is neither anas visualized under Section 3(a) of the U.P. Act XIII of 1972 norwithin the meaning of Section 3(g) of the Act and that the appellant is in unauthorized occupation of the suit premises and is liable to be evicted. The High Court has directed the District Magistrate to pass appropriate orders under Section 16 of the U.P. Act XIII of 1972 on the release application of the landlord without further delay preferably within three weeks from the date of judgment of the High Court that is 09.03.2015. Father-in-law of Lalita had taken the suit premises on rent in the year 1940. In the facts and circumstances of the case, without relegating the matter to the District Magistrate to pass orders on the release application of the respondent-landlord, we deem it appropriate to direct the appellant to hand over vacant possession to the respondent-landlord.
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Munnilal Vs. State of M.P | Lalli was livng with Ramkishore. The appellant was having enmity on account of aforesaid incident. Deceased after eloping with Lalli was living in some other village and returned to his village a month before the incident. Ramkishore had gone to answer the call of nature in the evening on 30.11.1991 at about 4.30 p.m. towards the agricultural field of Gadka. Around 5 p.m. Phulla (A-3) armed with axe, Ramcharan (A-2) armed with sword alongwith Dayashankar (A-1) and Munni Lal (A-4) went to the field of Gadaka. Munni Lal and Dayashankar were barehanded. Phulla gave axe blow on the head of deceased. Thereafter, Dayashankar and Munnilal the co accused pulled the legs of deceased and threw him on the ground. Ramkishore fell on the crops in the field. Ramcharan assaulted the deceased by sword on the chest. Then he placed his sword on the chest of the deceased. On account of beating he died. Police after receiving information of the commission of crime carried out the investigation, arrested the accused persons and filed the challan on 3.1.1992 before the Court of Judicial Magistrate. Case was committed to the Court of Sessions Judge. Trial Court framed charges under Section 302/34 IPC against the accused persons. After recording the evidence the trial Court convicted the accused persons for offence under Sections 302 read with Section 34 IPC and sentenced them as afore-noted. 4. Before the High Court the basic stand was that the prosecution failed to prove common intention on the part of the appellants and, therefore, Section 34 had no application. The individual act of the appellant should have been considered. Merely because the appellant had accompanied other accused persons, that cannot be sufficient to warrant presumption of common intention. 5. Learned counsel for the State submitted that the eye witnesses PWs 2 and 3 had described the act of each of the appellants and the role ascribed to the appellant was that he pulled the leg of the deceased as a result of which deceased fell in the field of Masur crop and thereafter he was assaulted by other accused persons. The appeal was dismissed accepting the stand of the State. Learned counsel for the appellant re-iterated the stand taken before the High Court and submitted that Section 34 IPC has no application. 6. Learned counsel for the State on the other hand supported the judgment. 7. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109 ), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.8. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899 ), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.9. The evidence of PWs 2 and 3 did not attribute any overt act to the appellant. The mere fact that he was in the company of the accused who were armed would not be sufficient to attract Section 34 IPC. It is undisputed that appellant was not armed and he had no animosity with the deceased. This position is also accepted by the prosecution. Additionally, the stand that he pulled the leg of the deceased has not been established. | 1[ds]7. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109 ), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.8. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899 ), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.9. The evidence of PWs 2 and 3 did not attribute any overt act to the appellant. The mere fact that he was in the company of the accused who were armed would not be sufficient to attract Section 34 IPC. It is undisputed that appellant was not armed and he had no animosity with the deceased. This position is also accepted by the prosecution. Additionally, the stand that he pulled the leg of the deceased has not been established. | 1 | 1,259 | 654 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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Lalli was livng with Ramkishore. The appellant was having enmity on account of aforesaid incident. Deceased after eloping with Lalli was living in some other village and returned to his village a month before the incident. Ramkishore had gone to answer the call of nature in the evening on 30.11.1991 at about 4.30 p.m. towards the agricultural field of Gadka. Around 5 p.m. Phulla (A-3) armed with axe, Ramcharan (A-2) armed with sword alongwith Dayashankar (A-1) and Munni Lal (A-4) went to the field of Gadaka. Munni Lal and Dayashankar were barehanded. Phulla gave axe blow on the head of deceased. Thereafter, Dayashankar and Munnilal the co accused pulled the legs of deceased and threw him on the ground. Ramkishore fell on the crops in the field. Ramcharan assaulted the deceased by sword on the chest. Then he placed his sword on the chest of the deceased. On account of beating he died. Police after receiving information of the commission of crime carried out the investigation, arrested the accused persons and filed the challan on 3.1.1992 before the Court of Judicial Magistrate. Case was committed to the Court of Sessions Judge. Trial Court framed charges under Section 302/34 IPC against the accused persons. After recording the evidence the trial Court convicted the accused persons for offence under Sections 302 read with Section 34 IPC and sentenced them as afore-noted. 4. Before the High Court the basic stand was that the prosecution failed to prove common intention on the part of the appellants and, therefore, Section 34 had no application. The individual act of the appellant should have been considered. Merely because the appellant had accompanied other accused persons, that cannot be sufficient to warrant presumption of common intention. 5. Learned counsel for the State submitted that the eye witnesses PWs 2 and 3 had described the act of each of the appellants and the role ascribed to the appellant was that he pulled the leg of the deceased as a result of which deceased fell in the field of Masur crop and thereafter he was assaulted by other accused persons. The appeal was dismissed accepting the stand of the State. Learned counsel for the appellant re-iterated the stand taken before the High Court and submitted that Section 34 IPC has no application. 6. Learned counsel for the State on the other hand supported the judgment. 7. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109 ), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.8. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899 ), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.9. The evidence of PWs 2 and 3 did not attribute any overt act to the appellant. The mere fact that he was in the company of the accused who were armed would not be sufficient to attract Section 34 IPC. It is undisputed that appellant was not armed and he had no animosity with the deceased. This position is also accepted by the prosecution. Additionally, the stand that he pulled the leg of the deceased has not been established.
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1
### Explanation:
7. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109 ), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.8. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh (AIR 1993 SC 1899 ), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.9. The evidence of PWs 2 and 3 did not attribute any overt act to the appellant. The mere fact that he was in the company of the accused who were armed would not be sufficient to attract Section 34 IPC. It is undisputed that appellant was not armed and he had no animosity with the deceased. This position is also accepted by the prosecution. Additionally, the stand that he pulled the leg of the deceased has not been established.
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R. Kalyani Vs. Janak C. Mehta | to follow the statutory provisions and once there is a breach or contravention, such persons become liable to be punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed." In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257] , it has been held : "32. Likewise the ingredients of Section 420 of the Indian Penal Code are also not made out. There is no reason as to why the appellants must be made to undergo the agony of a criminal trial as has been held by this Court in the case of G. Sagar Suri and Anr. v. State of U.P. and Ors. [(2000) 2 SCC 636] . In this, this Court held that. "Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused, it is a serious matter." 39. It is settled law, by catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise of representation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed." {[See also Vir Prakash Sharma v. Anil Kumar Agarwal & Anr. [(2007) 7 SCC 373] . 26. Although the legal principle that a penal statute must receive strict construction, it is not in doubt or dispute, we may notice some authorities in this behalf. In Section 263 of the Francis Bennions Statutory Interpretation it is stated : "A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The Court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can therefore be described as a principle of legal policy formulated as a guide to legislative intention." Maxwell in The Interpretation of Statutes (12th Edn) says: "The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfillment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction." In Craies and Statute Law (7th Edn. At p. 529) it is said that penal statutes must be construed strictly. At page 530 of the said treatise, referring to U.S. v. Wiltberger, [(1820) 2 Wheat (US) 76], it is observed, thus : "The distinction between a strict construction and a more free one has, no doubt, in modern times almost disappeared, and the question now is, what is the true construction of the statute? I should say that in a criminal statute you must be quite sure that the offence charged is within the letter of the law. This rule is said to be founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the Legislature, and not in the judicial department, for it is the Legislature, not the Court, which is to define a crime and ordain its punishment." In Tuck v. Priester, [(1887)] 19 QBD 629] which is followed in London and County Commercial Properties Investments v. Attn Gen., [(1953) 1 WLR 312], it is stated: "We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms they are not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive." Blackburn, J. in Wills v. Thorp said [(1875) LR 10 QB 383]: "When the Legislature imposes a penalty, the words imposing it must be clear and distinct." 27. If a person, thus, has to be proceeded with as being variously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company.28. For the reasons aforementioned, we do not find any legal infirmity in the impugned judgment. Before parting with this case, however, we must clarify one aspect of the matter. Respondent No.3, arrayed as accused No.3 in the First Information Report, did not file any application under Section 482 of the Code of Criminal Procedure. We do not know under what circumstances, the High Court directed service of the notice on him. Nowhere in the impugned judgment, High Court found that the allegations contained in the First Information Report against the respondent No.3 also do not disclose commission of any cognizable offence. It is one thing to say that he has not committed the same but it is another thing that the High Courts jurisdiction under Section 482 of the Code of Criminal Procedure could have been invoked at this stage.29. In view of our findings aforementioned, we have no other option but to hold that the High Court in its judgment cannot be said to have covered the case of the respondent No.3. | 0[ds]27. If a person, thus, has to be proceeded with as being variously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company.28. For the reasons aforementioned, we do not find any legal infirmity in the impugned judgment. Before parting with this case, however, we must clarify one aspect of the matter. Respondent No.3, arrayed as accused No.3 in the First Information Report, did not file any application under Section 482 of the Code of Criminal Procedure. We do not know under what circumstances, the High Court directed service of the notice on him. Nowhere in the impugned judgment, High Court found that the allegations contained in the First Information Report against the respondent No.3 also do not disclose commission of any cognizable offence. It is one thing to say that he has not committed the same but it is another thing that the High Courts jurisdiction under Section 482 of the Code of Criminal Procedure could have been invoked at this stage.29. In view of our findings aforementioned, we have no other option but to hold that the High Court in its judgment cannot be said to have covered the case of the respondent No.3. | 0 | 6,195 | 261 | ### 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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to follow the statutory provisions and once there is a breach or contravention, such persons become liable to be punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed." In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257] , it has been held : "32. Likewise the ingredients of Section 420 of the Indian Penal Code are also not made out. There is no reason as to why the appellants must be made to undergo the agony of a criminal trial as has been held by this Court in the case of G. Sagar Suri and Anr. v. State of U.P. and Ors. [(2000) 2 SCC 636] . In this, this Court held that. "Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused, it is a serious matter." 39. It is settled law, by catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise of representation. From his making failure to keep up promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed." {[See also Vir Prakash Sharma v. Anil Kumar Agarwal & Anr. [(2007) 7 SCC 373] . 26. Although the legal principle that a penal statute must receive strict construction, it is not in doubt or dispute, we may notice some authorities in this behalf. In Section 263 of the Francis Bennions Statutory Interpretation it is stated : "A principle of statutory interpretation embodies the policy of the law, which is in turn based on public policy. The Court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy. A principle of statutory interpretation can therefore be described as a principle of legal policy formulated as a guide to legislative intention." Maxwell in The Interpretation of Statutes (12th Edn) says: "The strict construction of penal statutes seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly words setting out the elements of an offence; in requiring the fulfillment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction." In Craies and Statute Law (7th Edn. At p. 529) it is said that penal statutes must be construed strictly. At page 530 of the said treatise, referring to U.S. v. Wiltberger, [(1820) 2 Wheat (US) 76], it is observed, thus : "The distinction between a strict construction and a more free one has, no doubt, in modern times almost disappeared, and the question now is, what is the true construction of the statute? I should say that in a criminal statute you must be quite sure that the offence charged is within the letter of the law. This rule is said to be founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the Legislature, and not in the judicial department, for it is the Legislature, not the Court, which is to define a crime and ordain its punishment." In Tuck v. Priester, [(1887)] 19 QBD 629] which is followed in London and County Commercial Properties Investments v. Attn Gen., [(1953) 1 WLR 312], it is stated: "We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation, which will avoid the penalty in any particular case, we must adopt that construction. Unless penalties are imposed in clear terms they are not enforceable. Also where various interpretations of a section are admissible it is a strong reason against adopting a particular interpretation if it shall appear that the result would be unreasonable or oppressive." Blackburn, J. in Wills v. Thorp said [(1875) LR 10 QB 383]: "When the Legislature imposes a penalty, the words imposing it must be clear and distinct." 27. If a person, thus, has to be proceeded with as being variously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company.28. For the reasons aforementioned, we do not find any legal infirmity in the impugned judgment. Before parting with this case, however, we must clarify one aspect of the matter. Respondent No.3, arrayed as accused No.3 in the First Information Report, did not file any application under Section 482 of the Code of Criminal Procedure. We do not know under what circumstances, the High Court directed service of the notice on him. Nowhere in the impugned judgment, High Court found that the allegations contained in the First Information Report against the respondent No.3 also do not disclose commission of any cognizable offence. It is one thing to say that he has not committed the same but it is another thing that the High Courts jurisdiction under Section 482 of the Code of Criminal Procedure could have been invoked at this stage.29. In view of our findings aforementioned, we have no other option but to hold that the High Court in its judgment cannot be said to have covered the case of the respondent No.3.
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0
### Explanation:
27. If a person, thus, has to be proceeded with as being variously liable for the acts of the company, the company must be made an accused. In any event, it would be a fair thing to do so, as legal fiction is raised both against the Company as well as the person responsible for the acts of the Company.28. For the reasons aforementioned, we do not find any legal infirmity in the impugned judgment. Before parting with this case, however, we must clarify one aspect of the matter. Respondent No.3, arrayed as accused No.3 in the First Information Report, did not file any application under Section 482 of the Code of Criminal Procedure. We do not know under what circumstances, the High Court directed service of the notice on him. Nowhere in the impugned judgment, High Court found that the allegations contained in the First Information Report against the respondent No.3 also do not disclose commission of any cognizable offence. It is one thing to say that he has not committed the same but it is another thing that the High Courts jurisdiction under Section 482 of the Code of Criminal Procedure could have been invoked at this stage.29. In view of our findings aforementioned, we have no other option but to hold that the High Court in its judgment cannot be said to have covered the case of the respondent No.3.
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Surat Singh Vs. Kishori Lal & Ors | implies that the Mayor has the power to determine whether a person is validly nominated, and in determining whether he is validly nominated the Mayor has to consider not only whether the requirements of clauses (2) &(3) are complied with, but whether the candidate nominated is subject to any disqualification. In our judgment the expression "validly nominated" occurring in sub-r. (5) of r. 2 of the Election Rules, 1958, implies that the Mayor may determine whether the requirements of cls. (2) and (3) are satisfied. The Mayor cannot obviously hold a detailed enquiry having regard to the terms of r. 3 of the Delhi Development Authority Rules to ascertain whether the candidate is subject to any of the disqualifications set out in that rule. The Rules provide for diverse grounds of disqualification from membership of the Authority. A person is unsound mind and stands so declared by a competent court; if he is an undischarged insolvent; if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; if he is a licensed architect, draughts man, engineer, plumber, surveyor or town planner or employee of a firm of which any such licensed person is also a partner; if he is interested, directly or indirectly in any business of development of land in Delhi; if he is interested in any subsisting contract made with, or any work being done for, the Authority except as a shareholder (other than a director) in an incorporated company or as a member of co-operative society; if he is retained or employed in any professional capacity either personally or in the name of a firm of which he is a partner or with which he is engaged in a professional capacity, in connection with any cause or proceeding in which the Authority is interested or concerned; if he, having held any office under the Government, has been dismissed for corruption or disloyalty to the State within a period of four years; and if he fails to pay any arrears of any kind due by him, otherwise than as an agent, receiver, trustee an executor, to the Authority within three months after a notice in that behalf has been served upon him. By cl. (j) of r. 3 in the prescribed eventualities disqualifications do not operate. Normally the Mayor cannot in the absence of an express provision hold an enquiry in a meeting of the Corporation into the several matters contemplated by r. 3 before he accepts the nomination paper. In our judgment the High Court was right in holding that the Mayor was not competent under the Rules to determine whether a candidate: was under a disqualification at the date of nomination. The other argument raised by counsel for the appellant also has no substance. Objection to the nomination of Kishori Lal was not raised and could not be raised as a point of order at the meeting. Rule 33 of the Delhi Municipal Corporation (Procedure and Conduct of Business) Regulations, 1958provides:"Any member may at any time during the meeting of the Corporation submit a point of order for the decision of the Mayor, but in doing so shall confine himself to stating the point and the Mayor shall decide all points of order which may arise or be referred to him and his decision shall be final".5. A point of order includes an objection raised by a member at a meeting for breaches of the Rules or regulations, to some defect in the constitution of the meeting (e.g. absence of a quorum), to the use of offensive or abusive language, or to invite. the attention of the presiding officer that the motion under discussion is not within the scope of the notice, or to any similar infirmity or irregularity in the proceeding. In addition to breaches of the general or special rules use of insulting or bad language, gross accusations or insinuation and unseemly or contemptible conduct may be taken exception to in this manner. (Law and Practice Relating to Meetings. F. Shackleton. p. 97, 5th Edition). A point of order is primarily intended to determine the interpretation of the rules and regulations governing the meeting: it does not contemplate any discussion on any event. It cannot, therefore, be in the form of an objection to the competence of a member to stand for election to a Committee. By the, Delhi Development Authority Rules, existence of any of the disabilities referred to in r. 3 constitutes a disqualification. A claim that a candidate is subject to a disqualification cannot be decided without evidence and discussion: such an objection cannot, therefore, form the subject of a point of order.Rule 33 has made the decision of the Mayor final. But it is not intended thereby that a member may be declared disqualified by an order made without calling for evidence and without discussion, and by the mere fiat of the Mayor. Nor is it intended to remove an existing disqualification of a member without , evidence and without discussion.6. The argument that objection to the nomination paper of Kishori Lal was raised by way of a point of order was never raised in the petition and it is clear from the proceedings of the meeting that it was not treated as a point of order. Even if it be grated that the objection was raised and decided by the Mayor as a point of order jurisdiction of the civil court to determine the existence of a statutory disqualification cannot on that account be excluded. The finality is only for the purpose of the procedure and conduct of the meeting and confers no rights upon any person.7. Whether Kishori Lal was at the date of nomination disqualified from being elected a member of the Delhi Development Authority will therefore have to be decided in an appropriate proceeding if he is declared elected at an election held according to law.8. | 0[ds]Clauses (6), (7), (8), (9), (10) and (11) provide for the method of polling and the declaration of the result of the poll. But the Act and the rules contain no machinery for setting aside an election to the Delhi Developmentis common ground that the Delhi Corporation Act, 1957 and the rules framed by the Central Government under s. 56 ofthe Delhi Development Act, 1957 d9 not contain any express provision authorising the Mayor to reject theour judgment the expression "validly nominated" occurring in sub-r. (5) of r. 2 of the Election Rules, 1958, implies that the Mayor may determine whether the requirements of cls. (2) and (3) are satisfied. The Mayor cannot obviously hold a detailed enquiry having regard to the terms of r. 3 of the Delhi Development Authority Rules to ascertain whether the candidate is subject to any of the disqualifications set out in that rule. The Rules provide for diverse grounds of disqualification from membership of the Authority. A person is unsound mind and stands so declared by a competent court; if he is an undischarged insolvent; if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; if he is a licensed architect, draughts man, engineer, plumber, surveyor or town planner or employee of a firm of which any such licensed person is also a partner; if he is interested, directly or indirectly in any business of development of land in Delhi; if he is interested in any subsisting contract made with, or any work being done for, the Authority except as a shareholder (other than a director) in an incorporated company or as a member of co-operative society; if he is retained or employed in any professional capacity either personally or in the name of a firm of which he is a partner or with which he is engaged in a professional capacity, in connection with any cause or proceeding in which the Authority is interested or concerned; if he, having held any office under the Government, has been dismissed for corruption or disloyalty to the State within a period of four years; and if he fails to pay any arrears of any kind due by him, otherwise than as an agent, receiver, trustee an executor, to the Authority within three months after a notice in that behalf has been served upon him. By cl. (j) of r. 3 in the prescribed eventualities disqualifications do not operate. Normally the Mayor cannot in the absence of an express provision hold an enquiry in a meeting of the Corporation into the several matters contemplated by r. 3 before he accepts the nomination paper. In our judgment the High Court was right in holding that the Mayor was not competent under the Rules to determine whether a candidate: was under a disqualification at the date of nomination. The other argument raised by counsel for the appellant also has no substance. Objection to the nomination of Kishori Lal was not raised and could not be raised as a point of order at the33 has made the decision of the Mayor final. But it is not intended thereby that a member may be declared disqualified by an order made without calling for evidence and without discussion, and by the mere fiat of the Mayor. Nor is it intended to remove an existing disqualification of a member without , evidence and withoutargument that objection to the nomination paper of Kishori Lal was raised by way of a point of order was never raised in the petition and it is clear from the proceedings of the meeting that it was not treated as a point of order. Even if it be grated that the objection was raised and decided by the Mayor as a point of order jurisdiction of the civil court to determine the existence of a statutory disqualification cannot on that account be excluded. The finality is only for the purpose of the procedure and conduct of the meeting and confers no rights upon anyKishori Lal was at the date of nomination disqualified from being elected a member of the Delhi Development Authority will therefore have to be decided in an appropriate proceeding if he is declared elected at an election held according to law. | 0 | 2,079 | 807 | ### 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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implies that the Mayor has the power to determine whether a person is validly nominated, and in determining whether he is validly nominated the Mayor has to consider not only whether the requirements of clauses (2) &(3) are complied with, but whether the candidate nominated is subject to any disqualification. In our judgment the expression "validly nominated" occurring in sub-r. (5) of r. 2 of the Election Rules, 1958, implies that the Mayor may determine whether the requirements of cls. (2) and (3) are satisfied. The Mayor cannot obviously hold a detailed enquiry having regard to the terms of r. 3 of the Delhi Development Authority Rules to ascertain whether the candidate is subject to any of the disqualifications set out in that rule. The Rules provide for diverse grounds of disqualification from membership of the Authority. A person is unsound mind and stands so declared by a competent court; if he is an undischarged insolvent; if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; if he is a licensed architect, draughts man, engineer, plumber, surveyor or town planner or employee of a firm of which any such licensed person is also a partner; if he is interested, directly or indirectly in any business of development of land in Delhi; if he is interested in any subsisting contract made with, or any work being done for, the Authority except as a shareholder (other than a director) in an incorporated company or as a member of co-operative society; if he is retained or employed in any professional capacity either personally or in the name of a firm of which he is a partner or with which he is engaged in a professional capacity, in connection with any cause or proceeding in which the Authority is interested or concerned; if he, having held any office under the Government, has been dismissed for corruption or disloyalty to the State within a period of four years; and if he fails to pay any arrears of any kind due by him, otherwise than as an agent, receiver, trustee an executor, to the Authority within three months after a notice in that behalf has been served upon him. By cl. (j) of r. 3 in the prescribed eventualities disqualifications do not operate. Normally the Mayor cannot in the absence of an express provision hold an enquiry in a meeting of the Corporation into the several matters contemplated by r. 3 before he accepts the nomination paper. In our judgment the High Court was right in holding that the Mayor was not competent under the Rules to determine whether a candidate: was under a disqualification at the date of nomination. The other argument raised by counsel for the appellant also has no substance. Objection to the nomination of Kishori Lal was not raised and could not be raised as a point of order at the meeting. Rule 33 of the Delhi Municipal Corporation (Procedure and Conduct of Business) Regulations, 1958provides:"Any member may at any time during the meeting of the Corporation submit a point of order for the decision of the Mayor, but in doing so shall confine himself to stating the point and the Mayor shall decide all points of order which may arise or be referred to him and his decision shall be final".5. A point of order includes an objection raised by a member at a meeting for breaches of the Rules or regulations, to some defect in the constitution of the meeting (e.g. absence of a quorum), to the use of offensive or abusive language, or to invite. the attention of the presiding officer that the motion under discussion is not within the scope of the notice, or to any similar infirmity or irregularity in the proceeding. In addition to breaches of the general or special rules use of insulting or bad language, gross accusations or insinuation and unseemly or contemptible conduct may be taken exception to in this manner. (Law and Practice Relating to Meetings. F. Shackleton. p. 97, 5th Edition). A point of order is primarily intended to determine the interpretation of the rules and regulations governing the meeting: it does not contemplate any discussion on any event. It cannot, therefore, be in the form of an objection to the competence of a member to stand for election to a Committee. By the, Delhi Development Authority Rules, existence of any of the disabilities referred to in r. 3 constitutes a disqualification. A claim that a candidate is subject to a disqualification cannot be decided without evidence and discussion: such an objection cannot, therefore, form the subject of a point of order.Rule 33 has made the decision of the Mayor final. But it is not intended thereby that a member may be declared disqualified by an order made without calling for evidence and without discussion, and by the mere fiat of the Mayor. Nor is it intended to remove an existing disqualification of a member without , evidence and without discussion.6. The argument that objection to the nomination paper of Kishori Lal was raised by way of a point of order was never raised in the petition and it is clear from the proceedings of the meeting that it was not treated as a point of order. Even if it be grated that the objection was raised and decided by the Mayor as a point of order jurisdiction of the civil court to determine the existence of a statutory disqualification cannot on that account be excluded. The finality is only for the purpose of the procedure and conduct of the meeting and confers no rights upon any person.7. Whether Kishori Lal was at the date of nomination disqualified from being elected a member of the Delhi Development Authority will therefore have to be decided in an appropriate proceeding if he is declared elected at an election held according to law.8.
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0
### Explanation:
Clauses (6), (7), (8), (9), (10) and (11) provide for the method of polling and the declaration of the result of the poll. But the Act and the rules contain no machinery for setting aside an election to the Delhi Developmentis common ground that the Delhi Corporation Act, 1957 and the rules framed by the Central Government under s. 56 ofthe Delhi Development Act, 1957 d9 not contain any express provision authorising the Mayor to reject theour judgment the expression "validly nominated" occurring in sub-r. (5) of r. 2 of the Election Rules, 1958, implies that the Mayor may determine whether the requirements of cls. (2) and (3) are satisfied. The Mayor cannot obviously hold a detailed enquiry having regard to the terms of r. 3 of the Delhi Development Authority Rules to ascertain whether the candidate is subject to any of the disqualifications set out in that rule. The Rules provide for diverse grounds of disqualification from membership of the Authority. A person is unsound mind and stands so declared by a competent court; if he is an undischarged insolvent; if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; if he is a licensed architect, draughts man, engineer, plumber, surveyor or town planner or employee of a firm of which any such licensed person is also a partner; if he is interested, directly or indirectly in any business of development of land in Delhi; if he is interested in any subsisting contract made with, or any work being done for, the Authority except as a shareholder (other than a director) in an incorporated company or as a member of co-operative society; if he is retained or employed in any professional capacity either personally or in the name of a firm of which he is a partner or with which he is engaged in a professional capacity, in connection with any cause or proceeding in which the Authority is interested or concerned; if he, having held any office under the Government, has been dismissed for corruption or disloyalty to the State within a period of four years; and if he fails to pay any arrears of any kind due by him, otherwise than as an agent, receiver, trustee an executor, to the Authority within three months after a notice in that behalf has been served upon him. By cl. (j) of r. 3 in the prescribed eventualities disqualifications do not operate. Normally the Mayor cannot in the absence of an express provision hold an enquiry in a meeting of the Corporation into the several matters contemplated by r. 3 before he accepts the nomination paper. In our judgment the High Court was right in holding that the Mayor was not competent under the Rules to determine whether a candidate: was under a disqualification at the date of nomination. The other argument raised by counsel for the appellant also has no substance. Objection to the nomination of Kishori Lal was not raised and could not be raised as a point of order at the33 has made the decision of the Mayor final. But it is not intended thereby that a member may be declared disqualified by an order made without calling for evidence and without discussion, and by the mere fiat of the Mayor. Nor is it intended to remove an existing disqualification of a member without , evidence and withoutargument that objection to the nomination paper of Kishori Lal was raised by way of a point of order was never raised in the petition and it is clear from the proceedings of the meeting that it was not treated as a point of order. Even if it be grated that the objection was raised and decided by the Mayor as a point of order jurisdiction of the civil court to determine the existence of a statutory disqualification cannot on that account be excluded. The finality is only for the purpose of the procedure and conduct of the meeting and confers no rights upon anyKishori Lal was at the date of nomination disqualified from being elected a member of the Delhi Development Authority will therefore have to be decided in an appropriate proceeding if he is declared elected at an election held according to law.
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K.B. Ramachandra Raj Urs(D) By Lrs Vs. State Of Karnataka | MUDA was in respect of the balance land i.e. about 40 acres. Of the said approximately 40 acres of land, according to the MUDA, about 16 acres and 30 guntas is presently vacant whereas there are encroachments on the remaining land. Though even on the land not allotted to respondent No. 28, no developmental work, in consonance with the object of the 1903 Act has been undertaken we are not certain if the same is on account of the smallness of the area available or for any other good and acceptable reasons. However, keeping in mind that even if we are to set aside the acquisition, re-acquisition can be resorted to in which event the land would continue to vest in the MUDA and the land owner would be entitled to compensation, though at an enhanced rate, we are of the view that it would be just, fair and equitable to direct that the land vacant as on today and all such lands under encroachments, after being made free therefrom, may be retained by the MUDA for developmental works in consonance with the object(s) of the 1903 Act and the owner thereof be entitled to compensation in terms of the directions that follow. All proceedings connected to such encroachments will be completed within six months from today by all such forums before which the same may be pending. In the event MUDA does not consider it feasible to utilize the land for the purpose of the Act the same be handed over to the person entitled to receive such possession depending upon the outcome of Writ Appeal No. 1654 of 2008.26. Insofar as the 55 acres of land allotted to the respondent No. 28 is concerned, we have taken note of the fact that despite the interim order dated 13th September, 1994 passed in Writ Petition No. 14726 of 1994 by the High Court of Karnataka, referred to above, the respondent No. 28 has raised constructions on the land. It is not necessary for us to go into the question as to whether such constructions had to be raised as the said respondent, by the time the interim order came to be passed, was committed to undertake such constructions and had no choice in the matter. What however cannot escape from notice is that notwithstanding the illegality in the allotment made and the risk undertaken by the respondent No. 28 in raising the constructions despite the interim order dated 13th September, 1994, a full-fledged academic campus consisting of several buildings, details of which are mentioned below, have come up on the land in question.1. JSS Polytechnic2. JSS Public School3. JSS Polytechnic for the differently Abled4. JSS Polytechnic for Women5. JSS Polytechnic for Women’s Hostel6. SJCE Ladies Hostel7. JSS NODAL Centre8. JSS-KSCA Cricket Ground27. The judicial power should not be destructive if the Rule and Majesty of law can be upheld by suitable and appropriate adaptations and modifications in the eventual order that may be passed by the Court in a given case. In the present case, that a full-fledged academic campus have come up on the 55 acres of land; that a large number of persons are utilizing the benefit of the said infrastructure and facilities provided therein; that the infrastructure raised on the allotted land is providing avenues of employment to many and a host of other such circumstances cannot be overlooked by the Court. On a perusal of the materials laid before the Court, particularly, the Google Map showing the layout of the buildings on the 55 acres of land in question which, was specifically sought for by the Court, we find that even today there are large tracts of vacant land within the said 55 acres notwithstanding the constructions raised. In such circumstances, it is our considered view that the respondent No.28 should be asked to surrender to MUDA a compact area of a minimum of 15 acres, which vacant land the MUDA will take possession of within a month from today. The return of the said land will be once again made to the person or persons entitled to receive such possession depending upon the outcome of Writ Appeal No.1654 of 2008. Insofar as the remaining 40 acres of land allotted to respondent No.28 is concerned, we direct that compensation, in respect thereof, to the person/persons entitled to receive such compensation under the Land Acquisition Act, will follow the outcome of Writ Appeal No.1654 of 2008. The compensation under the Act will be paid by taking the date of the order of the learned Single Judge of the High Court i.e. 22.02.2001 to be the date of the Notification under Section 4 of Land Acquisition Act. The aforesaid date, which represents the midway point between earlier and subsequent dates (the earlier date of notification under Section 16(1) of the Act of 1903 or the date of the present order) that could have been opted for, has been preferred by the court to balance the equities in a situation where the landowner is being denied the return of the land and the beneficiary of an illegal allotment is permitted to retain the same (in part) in larger public interest. We further direct that alongwith the market value of the land as on the said date i.e. 22.2.2001 the person or persons found to be entitled will be also entitled to compensation under all other heads including interest in accordance with the provisions of the Land Acquisition Act. The provisions of Section 18 and other provisions of the Act for enhanced compensation will also be applicable. The same directions and principles will govern the matter concerning compensation in respect of the vacant land (16 acres 30 guntas) and the land under encroachment referred to above after such encroachments are dealt with in terms of the directions contained herein. In view of the long efflux of time the process of determination and grant of compensation shall be completed by all forums within a period of one year from today. | 1[ds]25. Adverting to the facts of the present case, we find that out of the 94 acres and 28 guntas of land that was acquired way back in55 acres have been allotted to the respondent No. 28. The layout proposed by MUDA was in respect of the balance land i.e. about 40 acres. Of the said approximately 40 acres of land, according to the MUDA, about 16 acres and 30 guntas is presently vacant whereas there are encroachments on the remaining land. Though even on the land not allotted to respondent No. 28, no developmental work, in consonance with the object of the 1903 Act has been undertaken we are not certain if the same is on account of the smallness of the area available or for any other good and acceptable reasons. However, keeping in mind that even if we are to set aside the acquisition,can be resorted to in which event the land would continue to vest in the MUDA and the land owner would be entitled to compensation, though at an enhanced rate, we are of the view that it would be just, fair and equitable to direct that the land vacant as on today and all such lands under encroachments, after being made free therefrom, may be retained by the MUDA for developmental works in consonance with the object(s) of the 1903 Act and the owner thereof be entitled to compensation in terms of the directions that follow. All proceedings connected to such encroachments will be completed within six months from today by all such forums before which the same may be pending. In the event MUDA does not consider it feasible to utilize the land for the purpose of the Act the same be handed over to the person entitled to receive such possession depending upon the outcome of Writ Appeal No. 1654 of 2008.26. Insofar as the 55 acres of land allotted to the respondent No. 28 is concerned, we have taken note of the fact that despite the interim order dated 13th September, 1994 passed in Writ Petition No. 14726 of 1994 by the High Court of Karnataka, referred to above, the respondent No. 28 has raised constructions on the land. It is not necessary for us to go into the question as to whether such constructions had to be raised as the said respondent, by the time the interim order came to be passed, was committed to undertake such constructions and had no choice in the matter. What however cannot escape from notice is that notwithstanding the illegality in the allotment made and the risk undertaken by the respondent No. 28 in raising the constructions despite the interim order dated 13th September, 1994, aacademic campus consisting of several buildings, details of which are mentioned below, have come up on the land in question.1. JSS Polytechnic2. JSS Public School3. JSS Polytechnic for the differently Abled4. JSS Polytechnic for Women5. JSS Polytechnic forHostel6. SJCE Ladies Hostel7. JSS NODAL Centre8.Cricket Ground27. The judicial power should not be destructive if the Rule and Majesty of law can be upheld by suitable and appropriate adaptations and modifications in the eventual order that may be passed by the Court in a given case. In the present case, that aacademic campus have come up on the 55 acres of land; that a large number of persons are utilizing the benefit of the said infrastructure and facilities provided therein; that the infrastructure raised on the allotted land is providing avenues of employment to many and a host of other such circumstances cannot be overlooked by the Court. On a perusal of the materials laid before the Court, particularly, the Google Map showing the layout of the buildings on the 55 acres of land in question which, was specifically sought for by the Court, we find that even today there are large tracts of vacant land within the said 55 acres notwithstanding the constructions raised. In such circumstances, it is our considered view that the respondent No.28 should be asked to surrender to MUDA a compact area of a minimum of 15 acres, which vacant land the MUDA will take possession of within a month from today. The return of the said land will be once again made to the person or persons entitled to receive such possession depending upon the outcome of Writ Appeal No.1654 of 2008. Insofar as the remaining 40 acres of land allotted to respondent No.28 is concerned, we direct that compensation, in respect thereof, to the person/persons entitled to receive such compensation under the Land Acquisition Act, will follow the outcome of Writ Appeal No.1654 of 2008. The compensation under the Act will be paid by taking the date of the order of the learned Single Judge of the High Court i.e. 22.02.2001 to be the date of the Notification under Section 4 of Land Acquisition Act. The aforesaid date, which represents the midway point between earlier and subsequent dates (the earlier date of notification under Section 16(1) of the Act of 1903 or the date of the present order) that could have been opted for, has been preferred by the court to balance the equities in a situation where the landowner is being denied the return of the land and the beneficiary of an illegal allotment is permitted to retain the same (in part) in larger public interest. We further direct that alongwith the market value of the land as on the said date i.e. 22.2.2001 the person or persons found to be entitled will be also entitled to compensation under all other heads including interest in accordance with the provisions of the Land Acquisition Act. The provisions of Section 18 and other provisions of the Act for enhanced compensation will also be applicable. The same directions and principles will govern the matter concerning compensation in respect of the vacant land (16 acres 30 guntas) and the land under encroachment referred to above after such encroachments are dealt with in terms of the directions contained herein. In view of the long efflux of time the process of determination and grant of compensation shall be completed by all forums within a period of one year from today. | 1 | 6,901 | 1,127 | ### 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:
MUDA was in respect of the balance land i.e. about 40 acres. Of the said approximately 40 acres of land, according to the MUDA, about 16 acres and 30 guntas is presently vacant whereas there are encroachments on the remaining land. Though even on the land not allotted to respondent No. 28, no developmental work, in consonance with the object of the 1903 Act has been undertaken we are not certain if the same is on account of the smallness of the area available or for any other good and acceptable reasons. However, keeping in mind that even if we are to set aside the acquisition, re-acquisition can be resorted to in which event the land would continue to vest in the MUDA and the land owner would be entitled to compensation, though at an enhanced rate, we are of the view that it would be just, fair and equitable to direct that the land vacant as on today and all such lands under encroachments, after being made free therefrom, may be retained by the MUDA for developmental works in consonance with the object(s) of the 1903 Act and the owner thereof be entitled to compensation in terms of the directions that follow. All proceedings connected to such encroachments will be completed within six months from today by all such forums before which the same may be pending. In the event MUDA does not consider it feasible to utilize the land for the purpose of the Act the same be handed over to the person entitled to receive such possession depending upon the outcome of Writ Appeal No. 1654 of 2008.26. Insofar as the 55 acres of land allotted to the respondent No. 28 is concerned, we have taken note of the fact that despite the interim order dated 13th September, 1994 passed in Writ Petition No. 14726 of 1994 by the High Court of Karnataka, referred to above, the respondent No. 28 has raised constructions on the land. It is not necessary for us to go into the question as to whether such constructions had to be raised as the said respondent, by the time the interim order came to be passed, was committed to undertake such constructions and had no choice in the matter. What however cannot escape from notice is that notwithstanding the illegality in the allotment made and the risk undertaken by the respondent No. 28 in raising the constructions despite the interim order dated 13th September, 1994, a full-fledged academic campus consisting of several buildings, details of which are mentioned below, have come up on the land in question.1. JSS Polytechnic2. JSS Public School3. JSS Polytechnic for the differently Abled4. JSS Polytechnic for Women5. JSS Polytechnic for Women’s Hostel6. SJCE Ladies Hostel7. JSS NODAL Centre8. JSS-KSCA Cricket Ground27. The judicial power should not be destructive if the Rule and Majesty of law can be upheld by suitable and appropriate adaptations and modifications in the eventual order that may be passed by the Court in a given case. In the present case, that a full-fledged academic campus have come up on the 55 acres of land; that a large number of persons are utilizing the benefit of the said infrastructure and facilities provided therein; that the infrastructure raised on the allotted land is providing avenues of employment to many and a host of other such circumstances cannot be overlooked by the Court. On a perusal of the materials laid before the Court, particularly, the Google Map showing the layout of the buildings on the 55 acres of land in question which, was specifically sought for by the Court, we find that even today there are large tracts of vacant land within the said 55 acres notwithstanding the constructions raised. In such circumstances, it is our considered view that the respondent No.28 should be asked to surrender to MUDA a compact area of a minimum of 15 acres, which vacant land the MUDA will take possession of within a month from today. The return of the said land will be once again made to the person or persons entitled to receive such possession depending upon the outcome of Writ Appeal No.1654 of 2008. Insofar as the remaining 40 acres of land allotted to respondent No.28 is concerned, we direct that compensation, in respect thereof, to the person/persons entitled to receive such compensation under the Land Acquisition Act, will follow the outcome of Writ Appeal No.1654 of 2008. The compensation under the Act will be paid by taking the date of the order of the learned Single Judge of the High Court i.e. 22.02.2001 to be the date of the Notification under Section 4 of Land Acquisition Act. The aforesaid date, which represents the midway point between earlier and subsequent dates (the earlier date of notification under Section 16(1) of the Act of 1903 or the date of the present order) that could have been opted for, has been preferred by the court to balance the equities in a situation where the landowner is being denied the return of the land and the beneficiary of an illegal allotment is permitted to retain the same (in part) in larger public interest. We further direct that alongwith the market value of the land as on the said date i.e. 22.2.2001 the person or persons found to be entitled will be also entitled to compensation under all other heads including interest in accordance with the provisions of the Land Acquisition Act. The provisions of Section 18 and other provisions of the Act for enhanced compensation will also be applicable. The same directions and principles will govern the matter concerning compensation in respect of the vacant land (16 acres 30 guntas) and the land under encroachment referred to above after such encroachments are dealt with in terms of the directions contained herein. In view of the long efflux of time the process of determination and grant of compensation shall be completed by all forums within a period of one year from today.
### Response:
1
### Explanation:
allotted to the respondent No. 28. The layout proposed by MUDA was in respect of the balance land i.e. about 40 acres. Of the said approximately 40 acres of land, according to the MUDA, about 16 acres and 30 guntas is presently vacant whereas there are encroachments on the remaining land. Though even on the land not allotted to respondent No. 28, no developmental work, in consonance with the object of the 1903 Act has been undertaken we are not certain if the same is on account of the smallness of the area available or for any other good and acceptable reasons. However, keeping in mind that even if we are to set aside the acquisition,can be resorted to in which event the land would continue to vest in the MUDA and the land owner would be entitled to compensation, though at an enhanced rate, we are of the view that it would be just, fair and equitable to direct that the land vacant as on today and all such lands under encroachments, after being made free therefrom, may be retained by the MUDA for developmental works in consonance with the object(s) of the 1903 Act and the owner thereof be entitled to compensation in terms of the directions that follow. All proceedings connected to such encroachments will be completed within six months from today by all such forums before which the same may be pending. In the event MUDA does not consider it feasible to utilize the land for the purpose of the Act the same be handed over to the person entitled to receive such possession depending upon the outcome of Writ Appeal No. 1654 of 2008.26. Insofar as the 55 acres of land allotted to the respondent No. 28 is concerned, we have taken note of the fact that despite the interim order dated 13th September, 1994 passed in Writ Petition No. 14726 of 1994 by the High Court of Karnataka, referred to above, the respondent No. 28 has raised constructions on the land. It is not necessary for us to go into the question as to whether such constructions had to be raised as the said respondent, by the time the interim order came to be passed, was committed to undertake such constructions and had no choice in the matter. What however cannot escape from notice is that notwithstanding the illegality in the allotment made and the risk undertaken by the respondent No. 28 in raising the constructions despite the interim order dated 13th September, 1994, aacademic campus consisting of several buildings, details of which are mentioned below, have come up on the land in question.1. JSS Polytechnic2. JSS Public School3. JSS Polytechnic for the differently Abled4. JSS Polytechnic for Women5. JSS Polytechnic forHostel6. SJCE Ladies Hostel7. JSS NODAL Centre8.Cricket Ground27. The judicial power should not be destructive if the Rule and Majesty of law can be upheld by suitable and appropriate adaptations and modifications in the eventual order that may be passed by the Court in a given case. In the present case, that aacademic campus have come up on the 55 acres of land; that a large number of persons are utilizing the benefit of the said infrastructure and facilities provided therein; that the infrastructure raised on the allotted land is providing avenues of employment to many and a host of other such circumstances cannot be overlooked by the Court. On a perusal of the materials laid before the Court, particularly, the Google Map showing the layout of the buildings on the 55 acres of land in question which, was specifically sought for by the Court, we find that even today there are large tracts of vacant land within the said 55 acres notwithstanding the constructions raised. In such circumstances, it is our considered view that the respondent No.28 should be asked to surrender to MUDA a compact area of a minimum of 15 acres, which vacant land the MUDA will take possession of within a month from today. The return of the said land will be once again made to the person or persons entitled to receive such possession depending upon the outcome of Writ Appeal No.1654 of 2008. Insofar as the remaining 40 acres of land allotted to respondent No.28 is concerned, we direct that compensation, in respect thereof, to the person/persons entitled to receive such compensation under the Land Acquisition Act, will follow the outcome of Writ Appeal No.1654 of 2008. The compensation under the Act will be paid by taking the date of the order of the learned Single Judge of the High Court i.e. 22.02.2001 to be the date of the Notification under Section 4 of Land Acquisition Act. The aforesaid date, which represents the midway point between earlier and subsequent dates (the earlier date of notification under Section 16(1) of the Act of 1903 or the date of the present order) that could have been opted for, has been preferred by the court to balance the equities in a situation where the landowner is being denied the return of the land and the beneficiary of an illegal allotment is permitted to retain the same (in part) in larger public interest. We further direct that alongwith the market value of the land as on the said date i.e. 22.2.2001 the person or persons found to be entitled will be also entitled to compensation under all other heads including interest in accordance with the provisions of the Land Acquisition Act. The provisions of Section 18 and other provisions of the Act for enhanced compensation will also be applicable. The same directions and principles will govern the matter concerning compensation in respect of the vacant land (16 acres 30 guntas) and the land under encroachment referred to above after such encroachments are dealt with in terms of the directions contained herein. In view of the long efflux of time the process of determination and grant of compensation shall be completed by all forums within a period of one year from today.
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Balbir Kaur & Others Vs. New India Assurance Company Ltd. & Others | of the Indian Penal Code.4. The Tribunal upon considering the materials brought on record by the parties awarded a sum of Rs. 7,96,000/- to the appellants. Respondent No. 1 preferred an appeal there against before the High Court. By reason of the impugned judgment, the High Court set aside the award passed by the Tribunal opining that as the cover note of the insurance had been issued on 15.03.1996 but the same was to take effect from 19.03.1996 and the accident having taken place on 18.03.1996, the insurer was not liable therefor.5. Appellants are, thus, before us. 6. By an order dated 13.08.2007, this Court issued a limited notice to the following effect: "Issue notice confined to the question as to whether in the peculiar facts and circumstances of the case and, particularly, in view of the fact that the petitioners have already withdrawn the amount deposited by the Insurance Company, this Court can issue a direction as to whether the Insurance Company may recover the amount from the owner and the driver in the same proceedings." 7. Before adverting to the contentions raised before us, we may notice that the High Court while issuing notice to the appellants directed the respondent No. 1 herein to deposit the awarded amount pursuant whereto the said amount has been deposited. Appellants have also withdrawn the same. However, the High Court, in its impugned judgment, directed refund of the said amount to the respondent No. 1. 8. The Tribunal in the said claim petition inter alia formulated the following issues: "1. Whether the insurance cover in the present case was effectively only from 19.3.96 to 10.3.97, replaced on behalf of R-3 in their WO7OPR3.2. Whether premium insurance policy referred to in above issue No. 1 was paid on 15.3.96 and if so to what effect?" 9. On the first issue, the Tribunal noticed that in the cover note the policy was shown to have been issued with effect from 18.03.1996 in view of a circular issued by the insurance company but it had not been given effect to. Having regard to the fact that a photocopy thereof had been produced, it was held: "...Besides the proposal form relating to the impugned insurance policy has also not been produced to show as to what were the terms and conditions on which the insurance policy was to be executed with regard to the offending vehicle. There is no material on record to show that the insured was made aware of the office circular Ex-R3W1/B that if there was no other insurance policy in operation with regard to the offending vehicle immediately preceding 15.3.96 in these circumstances the insurance policy covering third party interest would be issued three days after the receipt of the proposal. The material on record placed by both the petitioner as well as respondent No. 3 in clear terms shows that the injured had made the payment of the premium on 15.3.96 and there was no reason for the insurance company to have issued the insurance policy covering third party interest w.e.f. 18.3.96..." 10. The High Court, on the other hand, having regard to the decisions of this Court in National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi (SMT) and Ors. [(1997) 1 SCC 66] and J. Kalaiveni and Ors. v. K. Sivshankar and Anr. [JT 2001 (10) SC 396], held: "9. In view of the clear cut position of law explained by the Supreme Court, it is clear that policy of insurance commences risk coverage only in terms of the policy of insurance and if certificate of insurance has not been issued, on the terms of the cover note." 11. Chapter XI of the Act provides for insurance of motor vehicles against third party risks. Indisputably, the deceased was a third party. In terms of Section 146 of the Act, an owner of a motor vehicle must take out an insurance in respect of a third party risk. Section 147 of the Act provides that a policy of insurance referred to in Section 146 thereof must be a policy which satisfies the conditions under Clauses (a) and (b) of Sub-section (1) thereof. Sub-section (5) of Section 147 reads as under: "(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons." 12. Section 64 VB of the Insurance Act, 1938 merely provides that no insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such persons in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.13. For the purpose of this case, we would assume that an insurance policy, in law, could be issued from a future date. A policy, however, which is issued from a future date must be with the consent of the holder of the policy. The insurance company cannot issue a policy unilaterally from a future date without the consent of the holder of a policy. Even the said circular letter had not been produced and/ or no material was placed as to why the policy was issued from a later date. It is, however, not necessary for us to delve deep into the matter in view of the limited notice issued by this Court.14. Respondent No. 3, however, owner of the vehicle has not questioned that part of the order passed by the High Court. He, therefore, accepted the judgment of the High Court. Accordingly, liability to pay the awarded amount by him is not in question. | 1[ds]12. Section 64 VB of the Insurance Act, 1938 merely provides that no insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such persons in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.13. For the purpose of this case, we would assume that an insurance policy, in law, could be issued from a future date. A policy, however, which is issued from a future date must be with the consent of the holder of the policy. The insurance company cannot issue a policy unilaterally from a future date without the consent of the holder of a policy. Even the said circular letter had not been produced and/ or no material was placed as to why the policy was issued from a later date. It is, however, not necessary for us to delve deep into the matter in view of the limited notice issued by this Court.14. Respondent No. 3, however, owner of the vehicle has not questioned that part of the order passed by the High Court. He, therefore, accepted the judgment of the High Court. Accordingly, liability to pay the awarded amount by him is not in question. | 1 | 1,324 | 271 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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of the Indian Penal Code.4. The Tribunal upon considering the materials brought on record by the parties awarded a sum of Rs. 7,96,000/- to the appellants. Respondent No. 1 preferred an appeal there against before the High Court. By reason of the impugned judgment, the High Court set aside the award passed by the Tribunal opining that as the cover note of the insurance had been issued on 15.03.1996 but the same was to take effect from 19.03.1996 and the accident having taken place on 18.03.1996, the insurer was not liable therefor.5. Appellants are, thus, before us. 6. By an order dated 13.08.2007, this Court issued a limited notice to the following effect: "Issue notice confined to the question as to whether in the peculiar facts and circumstances of the case and, particularly, in view of the fact that the petitioners have already withdrawn the amount deposited by the Insurance Company, this Court can issue a direction as to whether the Insurance Company may recover the amount from the owner and the driver in the same proceedings." 7. Before adverting to the contentions raised before us, we may notice that the High Court while issuing notice to the appellants directed the respondent No. 1 herein to deposit the awarded amount pursuant whereto the said amount has been deposited. Appellants have also withdrawn the same. However, the High Court, in its impugned judgment, directed refund of the said amount to the respondent No. 1. 8. The Tribunal in the said claim petition inter alia formulated the following issues: "1. Whether the insurance cover in the present case was effectively only from 19.3.96 to 10.3.97, replaced on behalf of R-3 in their WO7OPR3.2. Whether premium insurance policy referred to in above issue No. 1 was paid on 15.3.96 and if so to what effect?" 9. On the first issue, the Tribunal noticed that in the cover note the policy was shown to have been issued with effect from 18.03.1996 in view of a circular issued by the insurance company but it had not been given effect to. Having regard to the fact that a photocopy thereof had been produced, it was held: "...Besides the proposal form relating to the impugned insurance policy has also not been produced to show as to what were the terms and conditions on which the insurance policy was to be executed with regard to the offending vehicle. There is no material on record to show that the insured was made aware of the office circular Ex-R3W1/B that if there was no other insurance policy in operation with regard to the offending vehicle immediately preceding 15.3.96 in these circumstances the insurance policy covering third party interest would be issued three days after the receipt of the proposal. The material on record placed by both the petitioner as well as respondent No. 3 in clear terms shows that the injured had made the payment of the premium on 15.3.96 and there was no reason for the insurance company to have issued the insurance policy covering third party interest w.e.f. 18.3.96..." 10. The High Court, on the other hand, having regard to the decisions of this Court in National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi (SMT) and Ors. [(1997) 1 SCC 66] and J. Kalaiveni and Ors. v. K. Sivshankar and Anr. [JT 2001 (10) SC 396], held: "9. In view of the clear cut position of law explained by the Supreme Court, it is clear that policy of insurance commences risk coverage only in terms of the policy of insurance and if certificate of insurance has not been issued, on the terms of the cover note." 11. Chapter XI of the Act provides for insurance of motor vehicles against third party risks. Indisputably, the deceased was a third party. In terms of Section 146 of the Act, an owner of a motor vehicle must take out an insurance in respect of a third party risk. Section 147 of the Act provides that a policy of insurance referred to in Section 146 thereof must be a policy which satisfies the conditions under Clauses (a) and (b) of Sub-section (1) thereof. Sub-section (5) of Section 147 reads as under: "(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons." 12. Section 64 VB of the Insurance Act, 1938 merely provides that no insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such persons in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.13. For the purpose of this case, we would assume that an insurance policy, in law, could be issued from a future date. A policy, however, which is issued from a future date must be with the consent of the holder of the policy. The insurance company cannot issue a policy unilaterally from a future date without the consent of the holder of a policy. Even the said circular letter had not been produced and/ or no material was placed as to why the policy was issued from a later date. It is, however, not necessary for us to delve deep into the matter in view of the limited notice issued by this Court.14. Respondent No. 3, however, owner of the vehicle has not questioned that part of the order passed by the High Court. He, therefore, accepted the judgment of the High Court. Accordingly, liability to pay the awarded amount by him is not in question.
### Response:
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12. Section 64 VB of the Insurance Act, 1938 merely provides that no insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is guaranteed to be paid by such persons in such manner and within such time as may be prescribed or unless and until deposit of such amount as may be prescribed, is made in advance in the prescribed manner.13. For the purpose of this case, we would assume that an insurance policy, in law, could be issued from a future date. A policy, however, which is issued from a future date must be with the consent of the holder of the policy. The insurance company cannot issue a policy unilaterally from a future date without the consent of the holder of a policy. Even the said circular letter had not been produced and/ or no material was placed as to why the policy was issued from a later date. It is, however, not necessary for us to delve deep into the matter in view of the limited notice issued by this Court.14. Respondent No. 3, however, owner of the vehicle has not questioned that part of the order passed by the High Court. He, therefore, accepted the judgment of the High Court. Accordingly, liability to pay the awarded amount by him is not in question.
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ANAPURNA JAISWAL Vs. INDIAN OIL CORPORATION LTD. AND ORS | if he did not do so the only remedy of the transferee would be to sue for specific performance of the contract to transfer. 12. Section 105 specifically deals with lease of immovable property, and it reads as follows: - 105. Lease defined- A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. 13. A lease of immovable property is a transfer of immovable property. The transfer consists of the transfer of a right to enjoy immovable property. It creates an interest in the property. One of the essential elements of the lease is the period of time for which the demise holds good. A lease may be for certain time which may be express or implied. It may also be in perpetuity. Therefore, when one thinks of a lease of an immovable property one of the essential terms would be the period for which the lease operates. In this case, the lease or the period of the lease is 30 years. The question would immediately arise as to when the lease bears life. The expression certain time is premised on there being a beginning in point of time and the end again with reference to time. Certain time would in other words be a period of time. The answer is given by the lease itself, namely that the period begins with effect from the date of approval of the petrol pump. In other words, here is a lease deed which contemplated the period of the lease commencing at a point of time in the future. What is more it would commence only with effect from the date of approval of the petrol pump. The parties in fact contemplated in clause 7 that in case the petrol pump was not approved then the second party (the appellant herein) must handover the land transferred on rent to the first party. 14. Whatever doubts one may have is dispelled by clause 5 which reads as follows: - 5. That after completion of leased period, viz., after expiry of 30 years, both parties shall have option renewal period by a lease deed in respect of land transferred on rent on the basis of mutual consent. A perusal of clause 5 would reveal that lease period is explained as after the expiry of 30 years and it speaks about the renewal of the lease period. The completion of the lease period which is after the expiry of the 30 years again would have to be reckoned only with effect from the date of approval of the petrol pump. Therefore, it is clear that the lease which the appellant laid store by contemplated the period of the lease commencing not on the date of the lease but at a point of time in the future. In fact, the point of time or the event upon which the period of lease was to begin with itself uncertain. Maybe it is true that it could come into effect upon future events taking shape on the principle that in equity on the future event happening relating to the subject matter of the lease, the lease could have affected the property in the future. But we need not explore the matter on those lines any further as it is clear that the lease did not take effect on the date of the lease namely 8.11.2011. If that be so there was also no lease in place as on the date of the application namely 11.11.2011. 15. The appellant attempted to derive support from Section 47 of the Registration Act, 1908. Section 47 of the Registration Act, 1908 is only intended to give effect to the lease deed which is registered at a later point of time than when it is executed. It is intended to provide that the document which is registered will have efficacy on its own terms with effect from the time when it was supposed to have come into effect under the document. In other words, the fact that it is registered at a later point of time could not detract from the document commencing to operate when it would have commenced but for it not having been registered. In fact, if one applies Section 47 of the Registration Act, to the facts of this case it would not have the effect of preponing the period of the lease as commencing from the date of the execution of the lease. The lease would operate on its terms and the period of the lease would commence only upon approval being granted despite it being registered. 16. The result of this discussion is that the appellant cannot be possibly entitled to the benefit of 35 marks which is vouchsafed only for those applicants who inter alia had a long-term lease as on the date of the application. 17. There is another aspect we must bear in mind. We are dealing with a case where what is sought is judicial review of the decision to award largesse. A fairly large measure of free play in the joints is vouchsafed to a public authority when it comes to understanding the terms under which the offer is made. We cannot be oblivious to this aspect as well. The fact that in the rectification deed also which was executed much after the date of the advertisement and application an attempt is made to correct the original lease deed and to indicate that it was as a result of an error that clause 1 which we have referred to came to be inserted also would fortify us in our reasoning which we have employed in finding that appellant is not entitled to 35 marks. | 0[ds]8. The appellant undoubtedly secured 85.93 marks. A part of the 85.93 marks is attributable to 35 marks which she derived on the basis of her being a lessee under lease deed dated 08.11.2011 which we have adverted to.10. However, this is not to be the end of the inquiry. The requirement under the clause is that to earn 35 marks the applicant must have inter alia a long lease (Registered for a minimum period of 19 years and 11 months as on the date of the application). What has weighed with the corporation in deciding to dislodge the appellant from the first position is that the lease dated 08.11.2011 was to become operative only from the date of the approval of the petrol pump. In other words, there was no lease deed in effect as on the date of the application which is admittedly 11.11.2011.11. This provision has been subject matter of discussion by this Court and we need only refer to Jugalkishore Saraf v. M/s. Raw Cotton Co. Ltd., AIR 1955 SC 376 . Therein in his concurring opinion Justice Bhagwati held:The words in present or in future qualify the word conveys and not the word property in the section and it has been held that a transfer of property that is not in existence operates as a contract to be performed in the future which may be specifically enforced as soon as the property comes into existence.As was observed by the Privy Council in 12 Moo Ind App 275 (PC) (E):But how can there be any transfer, actual or constructive, upon a contract under which the vendor sells that of which he has not possession, and to which he may never establish a title? The bill of sale in such a case can only be evidence of a contract to be performed in future, and upon the happening of a contingency, of which the purchaser may claim a specific performance, if he comes into Court shewing that he has himself done all that he was bound to do.It is only by the operation of the equitable principle that as soon as the property comes into existence and is capable of being identified, equity taking as done that which ought to be done fastens upon the property and the contract to assign thus becomes a complete equitable assignment. In the case of a decree to be passed in the future therefore there could be no assignment of the decree unless and until the decree was passed and the agreement to assign fastened on the decree and thus became a complete equitable assignment. The decree not being in existence at the date of the transfer cannot be said to have been transferred by the assignment in writing and the matter resting merely in a contract to be performed in the future which may be specifically enforced as soon as the decree was passed there would be no transfer automatically in favour of the transferee of the decree when passed.It would require a further act on the part of the transferor to completely effectuate the transfer and if he did not do so the only remedy of the transferee would be to sue for specific performance of the contract to transfer.In this case, the lease or the period of the lease is 30 years. The question would immediately arise as to when the lease bears life. The expression certain time is premised on there being a beginning in point of time and the end again with reference to time. Certain time would in other words be a period of time. The answer is given by the lease itself, namely that the period begins with effect from the date of approval of the petrol pump. In other words, here is a lease deed which contemplated the period of the lease commencing at a point of time in the future. What is more it would commence only with effect from the date of approval of the petrol pump. The parties in fact contemplated in clause 7 that in case the petrol pump was not approved then the second party (the appellant herein) must handover the land transferred on rent to the first party.A perusal of clause 5 would reveal that lease period is explained as after the expiry of 30 years and it speaks about the renewal of the lease period. The completion of the lease period which is after the expiry of the 30 years again would have to be reckoned only with effect from the date of approval of the petrol pump. Therefore, it is clear that the lease which the appellant laid store by contemplated the period of the lease commencing not on the date of the lease but at a point of time in the future. In fact, the point of time or the event upon which the period of lease was to begin with itself uncertain. Maybe it is true that it could come into effect upon future events taking shape on the principle that in equity on the future event happening relating to the subject matter of the lease, the lease could have affected the property in the future. But we need not explore the matter on those lines any further as it is clear that the lease did not take effect on the date of the lease namely 8.11.2011. If that be so there was also no lease in place as on the date of the application namely 11.11.2011.In fact, if one applies Section 47 of the Registration Act, to the facts of this case it would not have the effect of preponing the period of the lease as commencing from the date of the execution of the lease. The lease would operate on its terms and the period of the lease would commence only upon approval being granted despite it being registered.16. The result of this discussion is that the appellant cannot be possibly entitled to the benefit of 35 marks which is vouchsafed only for those applicants who inter alia had a long-term lease as on the date of the application.17. There is another aspect we must bear in mind. We are dealing with a case where what is sought is judicial review of the decision to award largesse. A fairly large measure of free play in the joints is vouchsafed to a public authority when it comes to understanding the terms under which the offer is made. We cannot be oblivious to this aspect as well. The fact that in the rectification deed also which was executed much after the date of the advertisement and application an attempt is made to correct the original lease deed and to indicate that it was as a result of an error that clause 1 which we have referred to came to be inserted also would fortify us in our reasoning which we have employed in finding that appellant is not entitled to 35 marks. | 0 | 2,564 | 1,228 | ### 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:
if he did not do so the only remedy of the transferee would be to sue for specific performance of the contract to transfer. 12. Section 105 specifically deals with lease of immovable property, and it reads as follows: - 105. Lease defined- A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. 13. A lease of immovable property is a transfer of immovable property. The transfer consists of the transfer of a right to enjoy immovable property. It creates an interest in the property. One of the essential elements of the lease is the period of time for which the demise holds good. A lease may be for certain time which may be express or implied. It may also be in perpetuity. Therefore, when one thinks of a lease of an immovable property one of the essential terms would be the period for which the lease operates. In this case, the lease or the period of the lease is 30 years. The question would immediately arise as to when the lease bears life. The expression certain time is premised on there being a beginning in point of time and the end again with reference to time. Certain time would in other words be a period of time. The answer is given by the lease itself, namely that the period begins with effect from the date of approval of the petrol pump. In other words, here is a lease deed which contemplated the period of the lease commencing at a point of time in the future. What is more it would commence only with effect from the date of approval of the petrol pump. The parties in fact contemplated in clause 7 that in case the petrol pump was not approved then the second party (the appellant herein) must handover the land transferred on rent to the first party. 14. Whatever doubts one may have is dispelled by clause 5 which reads as follows: - 5. That after completion of leased period, viz., after expiry of 30 years, both parties shall have option renewal period by a lease deed in respect of land transferred on rent on the basis of mutual consent. A perusal of clause 5 would reveal that lease period is explained as after the expiry of 30 years and it speaks about the renewal of the lease period. The completion of the lease period which is after the expiry of the 30 years again would have to be reckoned only with effect from the date of approval of the petrol pump. Therefore, it is clear that the lease which the appellant laid store by contemplated the period of the lease commencing not on the date of the lease but at a point of time in the future. In fact, the point of time or the event upon which the period of lease was to begin with itself uncertain. Maybe it is true that it could come into effect upon future events taking shape on the principle that in equity on the future event happening relating to the subject matter of the lease, the lease could have affected the property in the future. But we need not explore the matter on those lines any further as it is clear that the lease did not take effect on the date of the lease namely 8.11.2011. If that be so there was also no lease in place as on the date of the application namely 11.11.2011. 15. The appellant attempted to derive support from Section 47 of the Registration Act, 1908. Section 47 of the Registration Act, 1908 is only intended to give effect to the lease deed which is registered at a later point of time than when it is executed. It is intended to provide that the document which is registered will have efficacy on its own terms with effect from the time when it was supposed to have come into effect under the document. In other words, the fact that it is registered at a later point of time could not detract from the document commencing to operate when it would have commenced but for it not having been registered. In fact, if one applies Section 47 of the Registration Act, to the facts of this case it would not have the effect of preponing the period of the lease as commencing from the date of the execution of the lease. The lease would operate on its terms and the period of the lease would commence only upon approval being granted despite it being registered. 16. The result of this discussion is that the appellant cannot be possibly entitled to the benefit of 35 marks which is vouchsafed only for those applicants who inter alia had a long-term lease as on the date of the application. 17. There is another aspect we must bear in mind. We are dealing with a case where what is sought is judicial review of the decision to award largesse. A fairly large measure of free play in the joints is vouchsafed to a public authority when it comes to understanding the terms under which the offer is made. We cannot be oblivious to this aspect as well. The fact that in the rectification deed also which was executed much after the date of the advertisement and application an attempt is made to correct the original lease deed and to indicate that it was as a result of an error that clause 1 which we have referred to came to be inserted also would fortify us in our reasoning which we have employed in finding that appellant is not entitled to 35 marks.
### Response:
0
### Explanation:
need only refer to Jugalkishore Saraf v. M/s. Raw Cotton Co. Ltd., AIR 1955 SC 376 . Therein in his concurring opinion Justice Bhagwati held:The words in present or in future qualify the word conveys and not the word property in the section and it has been held that a transfer of property that is not in existence operates as a contract to be performed in the future which may be specifically enforced as soon as the property comes into existence.As was observed by the Privy Council in 12 Moo Ind App 275 (PC) (E):But how can there be any transfer, actual or constructive, upon a contract under which the vendor sells that of which he has not possession, and to which he may never establish a title? The bill of sale in such a case can only be evidence of a contract to be performed in future, and upon the happening of a contingency, of which the purchaser may claim a specific performance, if he comes into Court shewing that he has himself done all that he was bound to do.It is only by the operation of the equitable principle that as soon as the property comes into existence and is capable of being identified, equity taking as done that which ought to be done fastens upon the property and the contract to assign thus becomes a complete equitable assignment. In the case of a decree to be passed in the future therefore there could be no assignment of the decree unless and until the decree was passed and the agreement to assign fastened on the decree and thus became a complete equitable assignment. The decree not being in existence at the date of the transfer cannot be said to have been transferred by the assignment in writing and the matter resting merely in a contract to be performed in the future which may be specifically enforced as soon as the decree was passed there would be no transfer automatically in favour of the transferee of the decree when passed.It would require a further act on the part of the transferor to completely effectuate the transfer and if he did not do so the only remedy of the transferee would be to sue for specific performance of the contract to transfer.In this case, the lease or the period of the lease is 30 years. The question would immediately arise as to when the lease bears life. The expression certain time is premised on there being a beginning in point of time and the end again with reference to time. Certain time would in other words be a period of time. The answer is given by the lease itself, namely that the period begins with effect from the date of approval of the petrol pump. In other words, here is a lease deed which contemplated the period of the lease commencing at a point of time in the future. What is more it would commence only with effect from the date of approval of the petrol pump. The parties in fact contemplated in clause 7 that in case the petrol pump was not approved then the second party (the appellant herein) must handover the land transferred on rent to the first party.A perusal of clause 5 would reveal that lease period is explained as after the expiry of 30 years and it speaks about the renewal of the lease period. The completion of the lease period which is after the expiry of the 30 years again would have to be reckoned only with effect from the date of approval of the petrol pump. Therefore, it is clear that the lease which the appellant laid store by contemplated the period of the lease commencing not on the date of the lease but at a point of time in the future. In fact, the point of time or the event upon which the period of lease was to begin with itself uncertain. Maybe it is true that it could come into effect upon future events taking shape on the principle that in equity on the future event happening relating to the subject matter of the lease, the lease could have affected the property in the future. But we need not explore the matter on those lines any further as it is clear that the lease did not take effect on the date of the lease namely 8.11.2011. If that be so there was also no lease in place as on the date of the application namely 11.11.2011.In fact, if one applies Section 47 of the Registration Act, to the facts of this case it would not have the effect of preponing the period of the lease as commencing from the date of the execution of the lease. The lease would operate on its terms and the period of the lease would commence only upon approval being granted despite it being registered.16. The result of this discussion is that the appellant cannot be possibly entitled to the benefit of 35 marks which is vouchsafed only for those applicants who inter alia had a long-term lease as on the date of the application.17. There is another aspect we must bear in mind. We are dealing with a case where what is sought is judicial review of the decision to award largesse. A fairly large measure of free play in the joints is vouchsafed to a public authority when it comes to understanding the terms under which the offer is made. We cannot be oblivious to this aspect as well. The fact that in the rectification deed also which was executed much after the date of the advertisement and application an attempt is made to correct the original lease deed and to indicate that it was as a result of an error that clause 1 which we have referred to came to be inserted also would fortify us in our reasoning which we have employed in finding that appellant is not entitled to 35 marks.
|
National Radio Corporation Vs. Their Workmen | the appellant to post back the said eight workmen to the factory at Moti Nagar, Najafgarh Road, and allow them to work in their respective posts as before. It is against this award that the appellant has come to this Court by special leave.8. Mr. Rameshwar Nath for the appellant argued that the principal point on which wanted a decision from this Court was in regard to the power of the appellant to transfer its employees from the Moti Nagar factory to the new factory at Nangloi. He contends that the view taken by the tribunal about the scope and effect of the relevant standing order 7(c)(a) is erroneous. We do not propose to decide this point in the present appeal because, in our opinion, the other finding recorded by the tribunal that the impugned transfers amount to victimization is enough to dispose of the present appeal. We are, therefore, not expressing any opinion of the correctness or the validity of the conclusion recorded by the tribunal about the scope and effect of the said standing order. In fact, we are dealing with the present appeal on the assumption that the appellant has the power to transfer its employees from one factory to another.Turning then to the finding about mala fides recorded by the tribunal, Mr. Rameshwar Nath attempted to argue that the said finding is not supported by any evidence. In the alternative, he urged that it is perverse. We do not think there is any substance in either of the two pleas thus raised by Mr. Rameshwar Nath. The tribunal has elaborately examined the oral evidence led both by the respondents and the appellant. It has considered the documents on which the respondents relied and it has come to the conclusion that the oral evidence led by the employees is more reliable than that led on behalf of the appellant. That is a pure matter of appreciating evidence and the appellant is not entitled to ask this Court to reappreciate the said evidence in an appeal under Art. 136. The evidence which the tribunal has believed shows that the relations between the appellant and the sangh have been strained for considerable time past and that the appellants manager told some of the employees under orders of transfer that the transfer orders would be revoked if they resigned from the sangh. Besides, there are two other facts which have been found by the tribunal that strongly corroborate its conclusions about the mala fides of the transfers. It appears that the first transfer order was passed on 7 January, 1961 (Ex. M. 23) and it would be recalled that licence was given for expansion to the appellant on 16 January, 1961. It is thus clear that the first order of transfer was passed even before the licence for expansion was obtained. It is suggested that the transfer was made in anticipation of obtaining a licence. That, in our opinion, cannot be accepted as a sensible explanation. Besides, the tribunal was not satisfied that at that time any machinery had been purchased by the appellant for the new factory at all and so, it held that at least the first transfer order was passed not bona fide, but with a view to teach a lesson to the employees concerned.The other fact found by the tribunal is that as a result of the struggle which was going on between the appellant and the members of the sangh, the appellant deliberately held out a threat of closing down the factory, and so, put up a notice of closure (Ex. W. 10). The appellants denied that such a notice was put up on the board and in fact, it examined Baz Singh to show that no such notice was types and it was only types notices that were put on the notice board. The tribunal has disbelieved this evidence and has accepted the story of the respondents that such notice was put up on the notice board; as a result of the tension between the sangh and the management, the only object of doing so was to threaten the sangh.9. It also appears that the appellant had sent an advertisement to the Hindustan Times purporting to put its undertaking for sale. This was another attempt made by the appellant to frighten its employees. The explanation given on behalf of the appellant was that the proprietor found that the concern was in financial difficulties, and so, he was thinking of winding it up and going abroad. This explanation also has been rejected by the tribunal. The tribunal has observed that it is not shown that the proprietor had applied for a passport, and the documentary evidence shows that his story, that the business was running in loss, is absolutely untrue. Fortunately, the factory has made very good progress. The number of its workmen has increased from 24 to 200 in three years between 1957 and 1960 and during the same period, its turnover has shown as remarkable progress. Thus, it would be seen that these two facts strongly corroborate the conclusion of the tribunal that the appellant was not acting bona fide when it purported to issue orders of transfer in question. As we have already said, the appellant cannot challenge the correctness or propriety of these findings of fact in its appeal under Art. 136; and the contention that these findings are not supported by any evidence, or, in the alternative, are perverse, is patently ill-founded.The result is that the award of the tribunal is confirmed on the basis of the finding of the tribunal that the impugned transfers amounted to victimization and were the result of unfair labour practice. There can be no doubt that even if the appellant has the right to transfer its employees from one factory to another, the present transfers cannot be justified because they have not been effected bona fide for ordinary, normal reason of trade or business, but have been the result of an unfair labour practice. | 0[ds]We do not propose to decide this point in the present appeal because, in our opinion, the other finding recorded by the tribunal that the impugned transfers amount to victimization is enough to dispose of the present appeal. We are, therefore, not expressing any opinion of the correctness or the validity of the conclusion recorded by the tribunal about the scope and effect of the said standing order. In fact, we are dealing with the present appeal on the assumption that the appellant has the power to transfer its employees from one factory totribunal has elaborately examined the oral evidence led both by the respondents and the appellant. It has considered the documents on which the respondents relied and it has come to the conclusion that the oral evidence led by the employees is more reliable than that led on behalf of the appellant. That is a pure matter of appreciating evidence and the appellant is not entitled to ask this Court to reappreciate the said evidence in an appeal under Art. 136. The evidence which the tribunal has believed shows that the relations between the appellant and the sangh have been strained for considerable time past and that the appellants manager told some of the employees under orders of transfer that the transfer orders would be revoked if they resigned from the sangh. Besides, there are two other facts which have been found by the tribunal that strongly corroborate its conclusions about the mala fides of the transfers. It appears that the first transfer order was passed on 7 January, 1961 (Ex. M. 23) and it would be recalled that licence was given for expansion to the appellant on 16 January, 1961. It is thus clear that the first order of transfer was passed even before the licence for expansion was obtained. It is suggested that the transfer was made in anticipation of obtaining a licence. That, in our opinion, cannot be accepted as a sensible explanation. Besides, the tribunal was not satisfied that at that time any machinery had been purchased by the appellant for the new factory at all and so, it held that at least the first transfer order was passed not bona fide, but with a view to teach a lesson to the employees concerned.The other fact found by the tribunal is that as a result of the struggle which was going on between the appellant and the members of the sangh, the appellant deliberately held out a threat of closing down the factory, and so, put up a notice of closure (Ex. W. 10). The appellants denied that such a notice was put up on the board and in fact, it examined Baz Singh to show that no such notice was types and it was only types notices that were put on the notice board. The tribunal has disbelieved this evidence and has accepted the story of the respondents that such notice was put up on the notice board; as a result of the tension between the sangh and the management, the only object of doing so was to threaten the sangh.9. It also appears that the appellant had sent an advertisement to the Hindustan Times purporting to put its undertaking for sale. This was another attempt made by the appellant to frighten its employees. The explanation given on behalf of the appellant was that the proprietor found that the concern was in financial difficulties, and so, he was thinking of winding it up and going abroad. This explanation also has been rejected by the tribunal. The tribunal has observed that it is not shown that the proprietor had applied for a passport, and the documentary evidence shows that his story, that the business was running in loss, is absolutely untrue. Fortunately, the factory has made very good progress. The number of its workmen has increased from 24 to 200 in three years between 1957 and 1960 and during the same period, its turnover has shown as remarkable progress. Thus, it would be seen that these two facts strongly corroborate the conclusion of the tribunal that the appellant was not acting bona fide when it purported to issue orders of transfer in question. As we have already said, the appellant cannot challenge the correctness or propriety of these findings of fact in its appeal under Art. 136; and the contention that these findings are not supported by any evidence, or, in the alternative, are perverse, is patentlyresult is that the award of the tribunal is confirmed on the basis of the finding of the tribunal that the impugned transfers amounted to victimization and were the result of unfair labour practice. There can be no doubt that even if the appellant has the right to transfer its employees from one factory to another, the present transfers cannot be justified because they have not been effected bona fide for ordinary, normal reason of trade or business, but have been the result of an unfair labour practice. | 0 | 2,060 | 905 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the appellant to post back the said eight workmen to the factory at Moti Nagar, Najafgarh Road, and allow them to work in their respective posts as before. It is against this award that the appellant has come to this Court by special leave.8. Mr. Rameshwar Nath for the appellant argued that the principal point on which wanted a decision from this Court was in regard to the power of the appellant to transfer its employees from the Moti Nagar factory to the new factory at Nangloi. He contends that the view taken by the tribunal about the scope and effect of the relevant standing order 7(c)(a) is erroneous. We do not propose to decide this point in the present appeal because, in our opinion, the other finding recorded by the tribunal that the impugned transfers amount to victimization is enough to dispose of the present appeal. We are, therefore, not expressing any opinion of the correctness or the validity of the conclusion recorded by the tribunal about the scope and effect of the said standing order. In fact, we are dealing with the present appeal on the assumption that the appellant has the power to transfer its employees from one factory to another.Turning then to the finding about mala fides recorded by the tribunal, Mr. Rameshwar Nath attempted to argue that the said finding is not supported by any evidence. In the alternative, he urged that it is perverse. We do not think there is any substance in either of the two pleas thus raised by Mr. Rameshwar Nath. The tribunal has elaborately examined the oral evidence led both by the respondents and the appellant. It has considered the documents on which the respondents relied and it has come to the conclusion that the oral evidence led by the employees is more reliable than that led on behalf of the appellant. That is a pure matter of appreciating evidence and the appellant is not entitled to ask this Court to reappreciate the said evidence in an appeal under Art. 136. The evidence which the tribunal has believed shows that the relations between the appellant and the sangh have been strained for considerable time past and that the appellants manager told some of the employees under orders of transfer that the transfer orders would be revoked if they resigned from the sangh. Besides, there are two other facts which have been found by the tribunal that strongly corroborate its conclusions about the mala fides of the transfers. It appears that the first transfer order was passed on 7 January, 1961 (Ex. M. 23) and it would be recalled that licence was given for expansion to the appellant on 16 January, 1961. It is thus clear that the first order of transfer was passed even before the licence for expansion was obtained. It is suggested that the transfer was made in anticipation of obtaining a licence. That, in our opinion, cannot be accepted as a sensible explanation. Besides, the tribunal was not satisfied that at that time any machinery had been purchased by the appellant for the new factory at all and so, it held that at least the first transfer order was passed not bona fide, but with a view to teach a lesson to the employees concerned.The other fact found by the tribunal is that as a result of the struggle which was going on between the appellant and the members of the sangh, the appellant deliberately held out a threat of closing down the factory, and so, put up a notice of closure (Ex. W. 10). The appellants denied that such a notice was put up on the board and in fact, it examined Baz Singh to show that no such notice was types and it was only types notices that were put on the notice board. The tribunal has disbelieved this evidence and has accepted the story of the respondents that such notice was put up on the notice board; as a result of the tension between the sangh and the management, the only object of doing so was to threaten the sangh.9. It also appears that the appellant had sent an advertisement to the Hindustan Times purporting to put its undertaking for sale. This was another attempt made by the appellant to frighten its employees. The explanation given on behalf of the appellant was that the proprietor found that the concern was in financial difficulties, and so, he was thinking of winding it up and going abroad. This explanation also has been rejected by the tribunal. The tribunal has observed that it is not shown that the proprietor had applied for a passport, and the documentary evidence shows that his story, that the business was running in loss, is absolutely untrue. Fortunately, the factory has made very good progress. The number of its workmen has increased from 24 to 200 in three years between 1957 and 1960 and during the same period, its turnover has shown as remarkable progress. Thus, it would be seen that these two facts strongly corroborate the conclusion of the tribunal that the appellant was not acting bona fide when it purported to issue orders of transfer in question. As we have already said, the appellant cannot challenge the correctness or propriety of these findings of fact in its appeal under Art. 136; and the contention that these findings are not supported by any evidence, or, in the alternative, are perverse, is patently ill-founded.The result is that the award of the tribunal is confirmed on the basis of the finding of the tribunal that the impugned transfers amounted to victimization and were the result of unfair labour practice. There can be no doubt that even if the appellant has the right to transfer its employees from one factory to another, the present transfers cannot be justified because they have not been effected bona fide for ordinary, normal reason of trade or business, but have been the result of an unfair labour practice.
### Response:
0
### Explanation:
We do not propose to decide this point in the present appeal because, in our opinion, the other finding recorded by the tribunal that the impugned transfers amount to victimization is enough to dispose of the present appeal. We are, therefore, not expressing any opinion of the correctness or the validity of the conclusion recorded by the tribunal about the scope and effect of the said standing order. In fact, we are dealing with the present appeal on the assumption that the appellant has the power to transfer its employees from one factory totribunal has elaborately examined the oral evidence led both by the respondents and the appellant. It has considered the documents on which the respondents relied and it has come to the conclusion that the oral evidence led by the employees is more reliable than that led on behalf of the appellant. That is a pure matter of appreciating evidence and the appellant is not entitled to ask this Court to reappreciate the said evidence in an appeal under Art. 136. The evidence which the tribunal has believed shows that the relations between the appellant and the sangh have been strained for considerable time past and that the appellants manager told some of the employees under orders of transfer that the transfer orders would be revoked if they resigned from the sangh. Besides, there are two other facts which have been found by the tribunal that strongly corroborate its conclusions about the mala fides of the transfers. It appears that the first transfer order was passed on 7 January, 1961 (Ex. M. 23) and it would be recalled that licence was given for expansion to the appellant on 16 January, 1961. It is thus clear that the first order of transfer was passed even before the licence for expansion was obtained. It is suggested that the transfer was made in anticipation of obtaining a licence. That, in our opinion, cannot be accepted as a sensible explanation. Besides, the tribunal was not satisfied that at that time any machinery had been purchased by the appellant for the new factory at all and so, it held that at least the first transfer order was passed not bona fide, but with a view to teach a lesson to the employees concerned.The other fact found by the tribunal is that as a result of the struggle which was going on between the appellant and the members of the sangh, the appellant deliberately held out a threat of closing down the factory, and so, put up a notice of closure (Ex. W. 10). The appellants denied that such a notice was put up on the board and in fact, it examined Baz Singh to show that no such notice was types and it was only types notices that were put on the notice board. The tribunal has disbelieved this evidence and has accepted the story of the respondents that such notice was put up on the notice board; as a result of the tension between the sangh and the management, the only object of doing so was to threaten the sangh.9. It also appears that the appellant had sent an advertisement to the Hindustan Times purporting to put its undertaking for sale. This was another attempt made by the appellant to frighten its employees. The explanation given on behalf of the appellant was that the proprietor found that the concern was in financial difficulties, and so, he was thinking of winding it up and going abroad. This explanation also has been rejected by the tribunal. The tribunal has observed that it is not shown that the proprietor had applied for a passport, and the documentary evidence shows that his story, that the business was running in loss, is absolutely untrue. Fortunately, the factory has made very good progress. The number of its workmen has increased from 24 to 200 in three years between 1957 and 1960 and during the same period, its turnover has shown as remarkable progress. Thus, it would be seen that these two facts strongly corroborate the conclusion of the tribunal that the appellant was not acting bona fide when it purported to issue orders of transfer in question. As we have already said, the appellant cannot challenge the correctness or propriety of these findings of fact in its appeal under Art. 136; and the contention that these findings are not supported by any evidence, or, in the alternative, are perverse, is patentlyresult is that the award of the tribunal is confirmed on the basis of the finding of the tribunal that the impugned transfers amounted to victimization and were the result of unfair labour practice. There can be no doubt that even if the appellant has the right to transfer its employees from one factory to another, the present transfers cannot be justified because they have not been effected bona fide for ordinary, normal reason of trade or business, but have been the result of an unfair labour practice.
|
Shimnit Utsch India Pvt. Ltd. & Another Vs. West Bengal Transport Infrastructure Development Corporation Ltd. & Others | feel it would be in the interest of all concerned if the States and Union Territories take definite decision as to whether there is need for giving effect to the amended Rule 50 and the scheme of HSRP and the modalities to be followed. It was further observed that while taking the decision, the aspects highlighted by this Court in Association of Registration Plates1 shall be kept in view. After disposal of the PIL, the petitioner therein filed I.A. No. 5 for clarification of the order dated May 8, 2008 and this Court while disposing of the said I.A. on May 5, 2009 clarified that there was no discretion given to the States/UTs not to give effect to the amended Rule 50 and the claim of HSRP and the modalities to be followed. Thereafter, I.A. was filed by the Central Government on September 17, 2009 before this Court for extension of time wherein the following statement was made: "The primary reason for non implementation of the scheme has been the challenges to certain conditions of the tender floated by various States. The issues such as experience in foreign countries, minimum net worth and turnover with a certain prescribed percentage of turn over from number plate business in the immediately preceding last three years and long term contract to a single vendor for the entire State had been the subject matter of WP(C) No. 41 of 2003--Association of Registration Plates Vs. UOI & Ors. That this Honble Court in the judgment dated 30th November, 2004, laid to rest all such issues by holding that all such conditions were essential and mandatory conditions of the HSRP tender to ensure that the vendors selected by the States would be technically and financially competent to fulfill the contractual obligations which looking to the magnitude of the job requires huge investment qualitatively and quantitatively." By order dated December 15, 2009, this Court extended the time for implementation of HSRP upto May 31, 2010. None of these orders holds that while implementing the new system of HSRP, States and UTs are bound to incorporate the conditions of foreign experience and minimum turnover from that business. The statement made by the Central Government in its application as aforenoticed only reflected the reason for non-implementation of HSRP scheme. As a matter of fact, the Central Government has clarified the position in its communication with the States/UTs that draft tender conditions circulated by them are only suggestive. Be that as it may. The decision of this Court in Maninderjit Singh Bitta and the subsequently clarificatory order therein are hardly relevant and do not help the case of the appellants.52. It is important to notice that the bids pursuant to the second NIT have been evaluated by WBTIDCL and we have been informed that the lowest bid per HSRP unit for a vehicle is Rs. 469/- while the offer made by Shimnit (appellant) is of about Rs. 1200/-. Such a huge difference in the rate per HSRP unit shows that the action of the State Government in doing away with the conditions of experience in foreign countries and prescribed turnover from such business has been in larger public interest without compromising on safety, security and quality or sustainable capacity.53. Mr. F.S. Nariman, learned senior counsel contended that cancellation of first NIT and issuance of second NIT by the Government of West Bengal was actuated with malafides as Shimnit had challenged the pre-qualification of Promuk by filing a writ petition before the Calcutta High Court wherein an interim order also came to be passed. We are not impressed by this submission at all and it is noted to be rejected. There is no material much less substantial material to infer any malafides. Merely because Shimnit challenged the pre-qualification of Promuk before Calcutta High Court, it could hardly lead to an inference of malafides.54. It is true that the State or its tendering authority is bound to give effect to essential conditions of eligibility stated in a tender document and is not entitled to waive such conditions but that does not take away its administrative discretion to cancel the entire tender process in public interest provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice of arbitrariness or irrationality or in violation of some statutory provisions. It is always open to the State to give effect to new policy which it wished to pursue keeping in view `overriding public interest and subject to principles of Wednesbury reasonableness. The judgment of Guwahati High Court in Real Mazon India Ltd. v. State of Assam and Ors. (2008 (1) GLT 1020) was also pressed into service by the appellants. In that case, the corrigenda dated December 26, 2006, January 6, 2007 and January 16, 2007 issued by the State of Assam deleting the conditions of experience, expertise and exposure of the bidders in the manufacture and supply of HSRP were challenged. Guwahati High Court quashed the impugned corrigenda. We are unable to approve the judgment of the Guwahati High Court in Real Mazon India Ltd.17 for the reasons given above.55. As regards the State of Orissa, it is an admitted position that it issued NIT for the first time on April 11, 2007 inviting bids for the manufacture and supply of HSRP in respect of the existing motor vehicles and vehicles to be registered in the State of Orissa. The said NIT was not taken to logical conclusion and a fresh NIT was issued on July 6, 2009 on BOO basis. In that NIT, inter alia, eligibility criteria has been provided that bidder should have experience of working in the field of HSRP having used the security features as mentioned in Rule 50 of 1989 Rules. However, NIT does not insist on conditions like experience in the foreign countries and minimum prescribed turnover from the said business. In what we have already discussed above, no case for judicial review or intervention in the said NIT is made out. | 0[ds]46. In the light of the afore-noticed legal position, we shall now examine whether judicial intervention is called for in NIT issued by the State of West Bengal and State of Orissa for manufacture and supply of HSRP. Insofar as State of West Bengal is concerned, the first NIT was issued in the month of July, 2003 fixing August 6, 2003 as the last date for submission of tender papers. Pursuant thereto, four bidders participated. The finalization of the tender process could not take place because of interim order passed by this Court in Association of Registration Plates1 and other connected cases. These cases were decided by this Court on November 30, 2004. Of the four bidders, who initially participated in the tender process, one withdrew and as regards Promuk, an objection was raised by Shimnit about their eligibility. Shimnit approached Calcutta High Court and obtained an interim order from the Single Judge that tender process shall not be finalized. As a matter of fact, due to litigation no substantial progress took place for two years in finalization of process for which NIT was issued in July, 2003 and practically two bidders in the entire tender process remained in fray. In interregnum, considerable number of indigenous manufacturers obtained the requisite TAC from the approved institutions as per the provisions of 1988 Act and thereby acquired capacity and ability to manufacture HSRP. In the backdrop of these reasons, the State Government seemed to have formed an opinion that by increasing competition, greater public interest could be achieved and, accordingly, decided to cancel first NIT and issued second NIT doing away with conditions like experience in foreign countries and prescribed minimum turnover from that business. Whether State Government could have changed terms of NIT despite the judgment of this Court in Association of Registration Plates1? Once a particular matter relating to conditions in NIT has been finally decided by the highest Court, the State Government, which was party to the litigation, ought to have proceeded accordingly but, in a case such as the present one, where the circumstances changed in some material respects as aforenoticed, departure from the earlier policy cannot be held to be legally flawed, particularly when there is no challenge to the changed policy reflected in second NIT on the ground of Wednesbury reasonableness or principle of legitimate expectation or arbitrariness or irrationality. In considering whether there has been a change of circumstances sufficient to justify departure from the previous stance, the Division Bench of Calcutta High Court recorded a finding that reasons stated by the State Government for departure from the conditions in the first NIT did exist and accepted the contention of the State Government that by increasing the area of competition, greater public interest would be sub-served because of financial implications. We have no justifiable reason to take a view different from the High Court insofar as correctness of these reasons is concerned. The courts have repeatedly held that government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the government or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice.47. In Association of Registration Plates1, this Court while dealing with the challenge to the conditions with regard to experience in foreign countries and prescribed minimum turnover from that business observed that these conditions have been framed in the NIT to ensure that the manufacturer selected would be technically and financially competent to fulfill the contractual obligations and to eliminate fly-by-night operators and that the insistence of the State to search for an experienced manufacturer with sound financial and technical capacity cannot be misunderstood. While maintaining the State Governments right to get the right and most competent person, it was held that in the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of HSRP, greater latitude is required to be conceded to the State authorities and unless the action of tendering authority is found to be malicious and a misuse of statutory powers, tender conditions are unassailable. On the contentions advanced, this Court examined the impugned conditions and did not find any fault and overruled all objections raised by the petitioners therein in challenge to these conditions. This Court has neither laid down as an absolute proposition that manufacturer of HSRP must have the foreign experience and a particular financial capacity to fulfill the contractual obligations nor it has been held that these conditions must necessarily be insisted upon in the NIT. The judgment of this Court in Association of Registration Plates1 cannot be read as prescribing the conditions in NIT for manufacture and supply of HSRP. Rather this Court examined legality and justification of the impugned conditions within the permissible parameters of judicial review and recognized the right of the States in formulating tender conditions. In our opinion, there is no justification in denying the State authorities latitude for departure from the conditions of the NIT that came up for consideration before this Court in larger public interest to broaden the base of competitive bidding due to lapse of time and substantial increase in the number of persons having TAC from the approved institutes without compromising on the quality and specifications of HSRP as set out in Rule 50, Order 2001 and Amendment Order, 2001.48. Mr. F.S. Nariman, learned senior counsel heavily relied upon a decision of this Court in S. Nagaraj & Ors. v. State of Karnataka & Anr.16 and submitted that the decision of this Court in Association of Registration Plates1 was binding on all States and the said judgment has to be enforced and obeyed strictly and any deviation from those conditions by the States on their own is impermissible.49. In S. Nagaraj & Ors. (1993 Suppl. (4) SCC 595) , this Court observed as followsit so? Could the Government take up this stand? Law on the binding effect of an order passed by a court of law is well settled. Nor there can be any conflict of opinion that if an order had been passed by a court which had jurisdiction to pass it then the error or mistake in the order can be got corrected by a higher court or by an application for clarification, modification or recall of the order and not by ignoring the order by any authority actively or passively or disobeying it expressly or impliedly. Even if the order has been improperly obtained the authorities cannot assume on themselves the role of substituting it or clarifying and modifying it as they consider proper. In Halsburys Laws of England (Fourth Edn., Vol. 9, p. 35, para 55) the law on orders improperly obtained is stated thus:"The opinion has been expressed that the fact that an order ought not to have been made is not a sufficient excuse for disobeying it, that disobedience to it constitutes a contempt, and that the party aggrieved should apply to the court for relief from compliance with the order."Any order passed by a court of law, more so by the higher courts and especially this Court whose decisions are declarations of law are not only entitled to respect but are binding and have to be enforced and obeyed strictly. No court much less an authority howsoever high can ignore it. Any doubt or ambiguity can be removed by the court which passed the order and not by an authority according to its own understanding.The statement of law exposited in S. Nagaraj16 is beyond question. As noticed above, in the case of Association of Registration Plates1, this Court did not find any fault with the controversial conditions in the NIT and overruled all objections raised by the petitioners therein in challenge to those conditions. The impugned conditions of NIT in that group of cases were not held to be arbitrary, discriminatory or irrational nor amounted to creation of any monopoly as alleged. The declaration of law by this Court in Association of Registration Plates1 is that in the matter of formulating conditions for a contract of the nature of ensuring supply of HSRP, greater latitude needs to be accorded to the State authorities. We find it difficult to hold that by virtue of that judgment the impugned conditions were frozen for all times to come and the States were obliged to persist with these conditions and could not alter them in larger interest of the public. In our view, the decision of this Court in Association of Registration Plates1 did not create any impediment for the States to alter or modify the conditions in the NIT if the circumstances changed in material respects by lapse of time.51. In the PIL filed by Maninderjit Singh Bitta, it was prayed that the States and UTs be directed to implement the judgment of this Court in Association of Registration Plates1 . This Court disposed of the writ petition on May 8, 2008 by observing, `we feel it would be in the interest of all concerned if the States and Union Territories take definite decision as to whether there is need for giving effect to the amended Rule 50 and the scheme of HSRP and the modalities to be followed. It was further observed that while taking the decision, the aspects highlighted by this Court in Association of Registration Plates1 shall be kept in view. After disposal of the PIL, the petitioner therein filed I.A. No. 5 for clarification of the order dated May 8, 2008 and this Court while disposing of the said I.A. on May 5, 2009 clarified that there was no discretion given to the States/UTs not to give effect to the amended Rule 50 and the claim of HSRP and the modalities to be followed. Thereafter, I.A. was filed by the Central Government on September 17, 2009 before this Court for extension of time wherein the following statement wasprimary reason for non implementation of the scheme has been the challenges to certain conditions of the tender floated by various States. The issues such as experience in foreign countries, minimum net worth and turnover with a certain prescribed percentage of turn over from number plate business in the immediately preceding last three years and long term contract to a single vendor for the entire State had been the subject matter of WP(C) No. 41 of 2003--Association of Registration Plates Vs. UOI & Ors. That this Honble Court in the judgment dated 30th November, 2004, laid to rest all such issues by holding that all such conditions were essential and mandatory conditions of the HSRP tender to ensure that the vendors selected by the States would be technically and financially competent to fulfill the contractual obligations which looking to the magnitude of the job requires huge investment qualitatively andorder dated December 15, 2009, this Court extended the time for implementation of HSRP upto May 31, 2010. None of these orders holds that while implementing the new system of HSRP, States and UTs are bound to incorporate the conditions of foreign experience and minimum turnover from that business. The statement made by the Central Government in its application as aforenoticed only reflected the reason for non-implementation of HSRP scheme. As a matter of fact, the Central Government has clarified the position in its communication with the States/UTs that draft tender conditions circulated by them are only suggestive. Be that as it may. The decision of this Court in Maninderjit Singh Bitta and the subsequently clarificatory order therein are hardly relevant and do not help the case of the appellants.52. It is important to notice that the bids pursuant to the second NIT have been evaluated by WBTIDCL and we have been informed that the lowest bid per HSRP unit for a vehicle is Rs. 469/- while the offer made by Shimnit (appellant) is of about Rs. 1200/-. Such a huge difference in the rate per HSRP unit shows that the action of the State Government in doing away with the conditions of experience in foreign countries and prescribed turnover from such business has been in larger public interest without compromising on safety, security and quality or sustainable capacity.53. Mr. F.S. Nariman, learned senior counsel contended that cancellation of first NIT and issuance of second NIT by the Government of West Bengal was actuated with malafides as Shimnit had challenged the pre-qualification of Promuk by filing a writ petition before the Calcutta High Court wherein an interim order also came to be passed. We are not impressed by this submission at all and it is noted to be rejected. There is no material much less substantial material to infer any malafides. Merely because Shimnit challenged the pre-qualification of Promuk before Calcutta High Court, it could hardly lead to an inference of malafides.54. It is true that the State or its tendering authority is bound to give effect to essential conditions of eligibility stated in a tender document and is not entitled to waive such conditions but that does not take away its administrative discretion to cancel the entire tender process in public interest provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice of arbitrariness or irrationality or in violation of some statutory provisions. It is always open to the State to give effect to new policy which it wished to pursue keeping in view `overriding public interest and subject to principles of Wednesbury reasonableness. The judgment of Guwahati High Court in Real Mazon India Ltd. v. State of Assam and Ors. (2008 (1) GLT 1020) was also pressed into service by the appellants. In that case, the corrigenda dated December 26, 2006, January 6, 2007 and January 16, 2007 issued by the State of Assam deleting the conditions of experience, expertise and exposure of the bidders in the manufacture and supply of HSRP were challenged. Guwahati High Court quashed the impugned corrigenda. We are unable to approve the judgment of the Guwahati High Court in Real Mazon India Ltd.17 for the reasons given above.55. As regards the State of Orissa, it is an admitted position that it issued NIT for the first time on April 11, 2007 inviting bids for the manufacture and supply of HSRP in respect of the existing motor vehicles and vehicles to be registered in the State of Orissa. The said NIT was not taken to logical conclusion and a fresh NIT was issued on July 6, 2009 on BOO basis. In that NIT, inter alia, eligibility criteria has been provided that bidder should have experience of working in the field of HSRP having used the security features as mentioned in Rule 50 of 1989 Rules. However, NIT does not insist on conditions like experience in the foreign countries and minimum prescribed turnover from the said business. In what we have already discussed above, no case for judicial review or intervention in the said NIT is made out. | 0 | 11,186 | 2,744 | ### Instruction:
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feel it would be in the interest of all concerned if the States and Union Territories take definite decision as to whether there is need for giving effect to the amended Rule 50 and the scheme of HSRP and the modalities to be followed. It was further observed that while taking the decision, the aspects highlighted by this Court in Association of Registration Plates1 shall be kept in view. After disposal of the PIL, the petitioner therein filed I.A. No. 5 for clarification of the order dated May 8, 2008 and this Court while disposing of the said I.A. on May 5, 2009 clarified that there was no discretion given to the States/UTs not to give effect to the amended Rule 50 and the claim of HSRP and the modalities to be followed. Thereafter, I.A. was filed by the Central Government on September 17, 2009 before this Court for extension of time wherein the following statement was made: "The primary reason for non implementation of the scheme has been the challenges to certain conditions of the tender floated by various States. The issues such as experience in foreign countries, minimum net worth and turnover with a certain prescribed percentage of turn over from number plate business in the immediately preceding last three years and long term contract to a single vendor for the entire State had been the subject matter of WP(C) No. 41 of 2003--Association of Registration Plates Vs. UOI & Ors. That this Honble Court in the judgment dated 30th November, 2004, laid to rest all such issues by holding that all such conditions were essential and mandatory conditions of the HSRP tender to ensure that the vendors selected by the States would be technically and financially competent to fulfill the contractual obligations which looking to the magnitude of the job requires huge investment qualitatively and quantitatively." By order dated December 15, 2009, this Court extended the time for implementation of HSRP upto May 31, 2010. None of these orders holds that while implementing the new system of HSRP, States and UTs are bound to incorporate the conditions of foreign experience and minimum turnover from that business. The statement made by the Central Government in its application as aforenoticed only reflected the reason for non-implementation of HSRP scheme. As a matter of fact, the Central Government has clarified the position in its communication with the States/UTs that draft tender conditions circulated by them are only suggestive. Be that as it may. The decision of this Court in Maninderjit Singh Bitta and the subsequently clarificatory order therein are hardly relevant and do not help the case of the appellants.52. It is important to notice that the bids pursuant to the second NIT have been evaluated by WBTIDCL and we have been informed that the lowest bid per HSRP unit for a vehicle is Rs. 469/- while the offer made by Shimnit (appellant) is of about Rs. 1200/-. Such a huge difference in the rate per HSRP unit shows that the action of the State Government in doing away with the conditions of experience in foreign countries and prescribed turnover from such business has been in larger public interest without compromising on safety, security and quality or sustainable capacity.53. Mr. F.S. Nariman, learned senior counsel contended that cancellation of first NIT and issuance of second NIT by the Government of West Bengal was actuated with malafides as Shimnit had challenged the pre-qualification of Promuk by filing a writ petition before the Calcutta High Court wherein an interim order also came to be passed. We are not impressed by this submission at all and it is noted to be rejected. There is no material much less substantial material to infer any malafides. Merely because Shimnit challenged the pre-qualification of Promuk before Calcutta High Court, it could hardly lead to an inference of malafides.54. It is true that the State or its tendering authority is bound to give effect to essential conditions of eligibility stated in a tender document and is not entitled to waive such conditions but that does not take away its administrative discretion to cancel the entire tender process in public interest provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice of arbitrariness or irrationality or in violation of some statutory provisions. It is always open to the State to give effect to new policy which it wished to pursue keeping in view `overriding public interest and subject to principles of Wednesbury reasonableness. The judgment of Guwahati High Court in Real Mazon India Ltd. v. State of Assam and Ors. (2008 (1) GLT 1020) was also pressed into service by the appellants. In that case, the corrigenda dated December 26, 2006, January 6, 2007 and January 16, 2007 issued by the State of Assam deleting the conditions of experience, expertise and exposure of the bidders in the manufacture and supply of HSRP were challenged. Guwahati High Court quashed the impugned corrigenda. We are unable to approve the judgment of the Guwahati High Court in Real Mazon India Ltd.17 for the reasons given above.55. As regards the State of Orissa, it is an admitted position that it issued NIT for the first time on April 11, 2007 inviting bids for the manufacture and supply of HSRP in respect of the existing motor vehicles and vehicles to be registered in the State of Orissa. The said NIT was not taken to logical conclusion and a fresh NIT was issued on July 6, 2009 on BOO basis. In that NIT, inter alia, eligibility criteria has been provided that bidder should have experience of working in the field of HSRP having used the security features as mentioned in Rule 50 of 1989 Rules. However, NIT does not insist on conditions like experience in the foreign countries and minimum prescribed turnover from the said business. In what we have already discussed above, no case for judicial review or intervention in the said NIT is made out.
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May 8, 2008 by observing, `we feel it would be in the interest of all concerned if the States and Union Territories take definite decision as to whether there is need for giving effect to the amended Rule 50 and the scheme of HSRP and the modalities to be followed. It was further observed that while taking the decision, the aspects highlighted by this Court in Association of Registration Plates1 shall be kept in view. After disposal of the PIL, the petitioner therein filed I.A. No. 5 for clarification of the order dated May 8, 2008 and this Court while disposing of the said I.A. on May 5, 2009 clarified that there was no discretion given to the States/UTs not to give effect to the amended Rule 50 and the claim of HSRP and the modalities to be followed. Thereafter, I.A. was filed by the Central Government on September 17, 2009 before this Court for extension of time wherein the following statement wasprimary reason for non implementation of the scheme has been the challenges to certain conditions of the tender floated by various States. The issues such as experience in foreign countries, minimum net worth and turnover with a certain prescribed percentage of turn over from number plate business in the immediately preceding last three years and long term contract to a single vendor for the entire State had been the subject matter of WP(C) No. 41 of 2003--Association of Registration Plates Vs. UOI & Ors. That this Honble Court in the judgment dated 30th November, 2004, laid to rest all such issues by holding that all such conditions were essential and mandatory conditions of the HSRP tender to ensure that the vendors selected by the States would be technically and financially competent to fulfill the contractual obligations which looking to the magnitude of the job requires huge investment qualitatively andorder dated December 15, 2009, this Court extended the time for implementation of HSRP upto May 31, 2010. None of these orders holds that while implementing the new system of HSRP, States and UTs are bound to incorporate the conditions of foreign experience and minimum turnover from that business. The statement made by the Central Government in its application as aforenoticed only reflected the reason for non-implementation of HSRP scheme. As a matter of fact, the Central Government has clarified the position in its communication with the States/UTs that draft tender conditions circulated by them are only suggestive. Be that as it may. The decision of this Court in Maninderjit Singh Bitta and the subsequently clarificatory order therein are hardly relevant and do not help the case of the appellants.52. It is important to notice that the bids pursuant to the second NIT have been evaluated by WBTIDCL and we have been informed that the lowest bid per HSRP unit for a vehicle is Rs. 469/- while the offer made by Shimnit (appellant) is of about Rs. 1200/-. Such a huge difference in the rate per HSRP unit shows that the action of the State Government in doing away with the conditions of experience in foreign countries and prescribed turnover from such business has been in larger public interest without compromising on safety, security and quality or sustainable capacity.53. Mr. F.S. Nariman, learned senior counsel contended that cancellation of first NIT and issuance of second NIT by the Government of West Bengal was actuated with malafides as Shimnit had challenged the pre-qualification of Promuk by filing a writ petition before the Calcutta High Court wherein an interim order also came to be passed. We are not impressed by this submission at all and it is noted to be rejected. There is no material much less substantial material to infer any malafides. Merely because Shimnit challenged the pre-qualification of Promuk before Calcutta High Court, it could hardly lead to an inference of malafides.54. It is true that the State or its tendering authority is bound to give effect to essential conditions of eligibility stated in a tender document and is not entitled to waive such conditions but that does not take away its administrative discretion to cancel the entire tender process in public interest provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice of arbitrariness or irrationality or in violation of some statutory provisions. It is always open to the State to give effect to new policy which it wished to pursue keeping in view `overriding public interest and subject to principles of Wednesbury reasonableness. The judgment of Guwahati High Court in Real Mazon India Ltd. v. State of Assam and Ors. (2008 (1) GLT 1020) was also pressed into service by the appellants. In that case, the corrigenda dated December 26, 2006, January 6, 2007 and January 16, 2007 issued by the State of Assam deleting the conditions of experience, expertise and exposure of the bidders in the manufacture and supply of HSRP were challenged. Guwahati High Court quashed the impugned corrigenda. We are unable to approve the judgment of the Guwahati High Court in Real Mazon India Ltd.17 for the reasons given above.55. As regards the State of Orissa, it is an admitted position that it issued NIT for the first time on April 11, 2007 inviting bids for the manufacture and supply of HSRP in respect of the existing motor vehicles and vehicles to be registered in the State of Orissa. The said NIT was not taken to logical conclusion and a fresh NIT was issued on July 6, 2009 on BOO basis. In that NIT, inter alia, eligibility criteria has been provided that bidder should have experience of working in the field of HSRP having used the security features as mentioned in Rule 50 of 1989 Rules. However, NIT does not insist on conditions like experience in the foreign countries and minimum prescribed turnover from the said business. In what we have already discussed above, no case for judicial review or intervention in the said NIT is made out.
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Citric India Limited Vs. Union of India | number of pending appeal. Shri Pochkhanwala submitted that the claim that appeal is pending in the supreme Court is entirely incorrect because during last seven years the petitioners had never received any notice from the Supreme Court and it is inconceivable that the appeal lodged in the year 1985 would remain pending for more than seven years. Shri Desai sought adjournment and which was readily granted to ascertain about the claim of pendency of the appeal. In spite of diligent search made by the learned counsel with the assistance of the officers of the Central excise, to trace can be found of any pendency of appeal against the order of the Tribunal. In these circumstances were proceed on the basis that either appeal which is alleged to have been filed in the Supreme Court by the Department was not prosecuted or was dismissed on merits. In these circumstances the question to be determined is whether the petition filed under Article 226 of the Constitution to challenge the direction of the Tribunal in paragraph 26 quoted hereinabove, should be entertained. We are inclined to entertain the petition as the dispute is pending in this Court for last over seven years and driving the parties now to file an appeal to the supreme Court would lead to multiplicity of litigation and considerable expenses. We are conscious that when remedy of appeal is available, this Court is reluctant to exercise writ jurisdiction, but taking into consideration the peculiar facts and circumstances of the case, we are not prepared to accede to the preliminary objection raised by Shri Desai that the petition should not be entertained.( 7 ) SHRI Desai then submitted that the finding recorded by the Tribunal that the Citric Acid the product manufactured by the petitioners, is a drug, drug-intermediate or pharmaceutical is incorrect. We are afraid we cannot permit the learned counsel to raise this contention, because the Department has not challenged that finding of the Tribunal either by filing petition in this court or by filing appeal before the Supreme Court. The appeal alleged to have been filed is either not filed or stands summarily dismissed. Consequently the conclusion of the Tribunal as regards the nature of product manufactured has become final and it is not open for the department to reagitate in the present proceedings. Shri Desai then submitted that even accepting that Citric Acid is a drug, drug-intermediate or pharmaceutical still the finding of the Tribunal that unless the Company established the end-use of the manufactured product, exemption is not available, should not be disturbed. We are afraid we cannot acceded to the submission. It is necessary to reiterate that the impost of excise duty is in respect of manufacture of a product and the liability to pay excise duty accrues as soon as manufactured article comes into existence. The liability to pay duty is not dependent upon the end-use of the product and it is not open for the manufacturer to claim that the liability is dependent upon the end-use of the product and so also to the Department to claim that exemption cannot be claimed till it is established that the manufactured product is used for ultimate manufacture of a drug or drug-intermediate. The advantage of exemption cannot be denied with reference to end-use, unless exemption notification so provides. In our judgment, in view of the decision recorded by this Court in the case of Rakesh Enterprises, the contention of Shri Desai cannot be acceded to.( 8 ) SHRI Desai referred to the decision of the Supreme Court reported in 1988 (38) E. L. T. 564 (Collector of C. E. Guntur v. Andhra Sugar Ltd.) to urge that the requirement of end-use though not built into the exemption notification is not only implied but also becomes imperative in a situation when the product has uses other than drug intermediate. The learned counsel submitted that this is the ratio laid down by the Supreme Court. The submission is not accurate. On careful perusal of the entire judgment of the Supreme Court, it is obvious that the observations set out in the head-note are not the findings or conclusions of the Supreme Court. The issue before the Supreme Court was whether the Acetic Andydride manufactured by the respondents and sold to drug manufacturers is eligible to benefit of exemption under Notification No. 55/75 as amended by Notification No. 62/78 as drug intermediate. The manufacturer has succeed before the tribunal and the appeal was carried to the Supreme Court by the Collector. The Supreme Court in paragraph 2 of the judgment observed that the question is was the item manufactured a drug or an intermediate in terms of the notification. In paragraph 6 of the judgment the Supreme Court noted that on the facts of the case that Acetic Andydride manufactured was used in the manufacture of the drugs. In view of the finding of fact noticed by the Supreme Court, the question as to whether the end-use of the manufactured product can be considered to determine levy of duty or benefit of exemption notification did not come up for consideration. The supreme Court referred to the decision of the single Judge of Karnataka High Court and where the learned Judge had quoted the observations of Government of India in a revision petition to the following effect:" In the Governments view this requirement of end-use though not built into the exemption notification, is not only implied but also becomes imperative in a situation where the product is used other than as drug intermediate."It is therefore obvious that the Supreme Court has not laid down any such principle, but the head-note merely carves out what was quoted in the order passed by the Government in the revisional jurisdiction and which was noted by the Single Judge of the Karnataka High Court. In our judgment, the reliance on the decision of the Supreme Court in these circumstances is not accurate. In our judgment the petitioners are entitled to the relief. | 1[ds]In spite of diligent search made by the learned counsel with the assistance of the officers of the Central excise, to trace can be found of any pendency of appeal against the order of the Tribunal. In these circumstances were proceed on the basis that either appeal which is alleged to have been filed in the Supreme Court by the Department was not prosecuted or was dismissed on merits. In these circumstances the question to be determined is whether the petition filed under Article 226 of the Constitution to challenge the direction of the Tribunal in paragraph 26 quoted hereinabove, should be entertained. We are inclined to entertain the petition as the dispute is pending in this Court for last over seven years and driving the parties now to file an appeal to the supreme Court would lead to multiplicity of litigation and considerable expenses. We are conscious that when remedy of appeal is available, this Court is reluctant to exercise writ jurisdiction, but taking into consideration the peculiar facts and circumstances of the case, we are not prepared to accede to the preliminary objection raised by Shri Desai that the petition should not beare afraid we cannot permit the learned counsel to raise this contention, because the Department has not challenged that finding of the Tribunal either by filing petition in this court or by filing appeal before the Supreme Court. The appeal alleged to have been filed is either not filed or stands summarily dismissed. Consequently the conclusion of the Tribunal as regards the nature of product manufactured has become final and it is not open for the department to reagitate in the present proceedings. Shri Desai then submitted that even accepting that Citric Acid is a drug,or pharmaceutical still the finding of the Tribunal that unless the Company established theof the manufactured product, exemption is not available, should not be disturbed. We are afraid we cannot acceded to the submission. It is necessary to reiterate that the impost of excise duty is in respect of manufacture of a product and the liability to pay excise duty accrues as soon as manufactured article comes into existence. The liability to pay duty is not dependent upon theof the product and it is not open for the manufacturer to claim that the liability is dependent upon theof the product and so also to the Department to claim that exemption cannot be claimed till it is established that the manufactured product is used for ultimate manufacture of a drug orThe advantage of exemption cannot be denied with reference tounless exemption notification so provides. In our judgment, in view of the decision recorded by this Court in the case of Rakesh Enterprises, the contention of Shri Desai cannot be accededcareful perusal of the entire judgment of the Supreme Court, it is obvious that the observations set out in theare not the findings or conclusions of the Supreme Court. The issue before the Supreme Court was whether the Acetic Andydride manufactured by the respondents and sold to drug manufacturers is eligible to benefit of exemption under Notification No. 55/75 as amended by Notification No. 62/78 as drug intermediate. The manufacturer has succeed before the tribunal and the appeal was carried to the Supreme Court by the Collector. The Supreme Court in paragraph 2 of the judgment observed that the question is was the item manufactured a drug or an intermediate in terms of the notification. In paragraph 6 of the judgment the Supreme Court noted that on the facts of the case that Acetic Andydride manufactured was used in the manufacture of the drugs. In view of the finding of fact noticed by the Supreme Court, the question as to whether theof the manufactured product can be considered to determine levy of duty or benefit of exemption notification did not come up foris therefore obvious that the Supreme Court has not laid down any such principle, but themerely carves out what was quoted in the order passed by the Government in the revisional jurisdiction and which was noted by the Single Judge of the Karnataka High Court. In our judgment, the reliance on the decision of the Supreme Court in these circumstances is not accurate. In our judgment the petitioners are entitled to the relief. | 1 | 2,726 | 758 | ### Instruction:
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number of pending appeal. Shri Pochkhanwala submitted that the claim that appeal is pending in the supreme Court is entirely incorrect because during last seven years the petitioners had never received any notice from the Supreme Court and it is inconceivable that the appeal lodged in the year 1985 would remain pending for more than seven years. Shri Desai sought adjournment and which was readily granted to ascertain about the claim of pendency of the appeal. In spite of diligent search made by the learned counsel with the assistance of the officers of the Central excise, to trace can be found of any pendency of appeal against the order of the Tribunal. In these circumstances were proceed on the basis that either appeal which is alleged to have been filed in the Supreme Court by the Department was not prosecuted or was dismissed on merits. In these circumstances the question to be determined is whether the petition filed under Article 226 of the Constitution to challenge the direction of the Tribunal in paragraph 26 quoted hereinabove, should be entertained. We are inclined to entertain the petition as the dispute is pending in this Court for last over seven years and driving the parties now to file an appeal to the supreme Court would lead to multiplicity of litigation and considerable expenses. We are conscious that when remedy of appeal is available, this Court is reluctant to exercise writ jurisdiction, but taking into consideration the peculiar facts and circumstances of the case, we are not prepared to accede to the preliminary objection raised by Shri Desai that the petition should not be entertained.( 7 ) SHRI Desai then submitted that the finding recorded by the Tribunal that the Citric Acid the product manufactured by the petitioners, is a drug, drug-intermediate or pharmaceutical is incorrect. We are afraid we cannot permit the learned counsel to raise this contention, because the Department has not challenged that finding of the Tribunal either by filing petition in this court or by filing appeal before the Supreme Court. The appeal alleged to have been filed is either not filed or stands summarily dismissed. Consequently the conclusion of the Tribunal as regards the nature of product manufactured has become final and it is not open for the department to reagitate in the present proceedings. Shri Desai then submitted that even accepting that Citric Acid is a drug, drug-intermediate or pharmaceutical still the finding of the Tribunal that unless the Company established the end-use of the manufactured product, exemption is not available, should not be disturbed. We are afraid we cannot acceded to the submission. It is necessary to reiterate that the impost of excise duty is in respect of manufacture of a product and the liability to pay excise duty accrues as soon as manufactured article comes into existence. The liability to pay duty is not dependent upon the end-use of the product and it is not open for the manufacturer to claim that the liability is dependent upon the end-use of the product and so also to the Department to claim that exemption cannot be claimed till it is established that the manufactured product is used for ultimate manufacture of a drug or drug-intermediate. The advantage of exemption cannot be denied with reference to end-use, unless exemption notification so provides. In our judgment, in view of the decision recorded by this Court in the case of Rakesh Enterprises, the contention of Shri Desai cannot be acceded to.( 8 ) SHRI Desai referred to the decision of the Supreme Court reported in 1988 (38) E. L. T. 564 (Collector of C. E. Guntur v. Andhra Sugar Ltd.) to urge that the requirement of end-use though not built into the exemption notification is not only implied but also becomes imperative in a situation when the product has uses other than drug intermediate. The learned counsel submitted that this is the ratio laid down by the Supreme Court. The submission is not accurate. On careful perusal of the entire judgment of the Supreme Court, it is obvious that the observations set out in the head-note are not the findings or conclusions of the Supreme Court. The issue before the Supreme Court was whether the Acetic Andydride manufactured by the respondents and sold to drug manufacturers is eligible to benefit of exemption under Notification No. 55/75 as amended by Notification No. 62/78 as drug intermediate. The manufacturer has succeed before the tribunal and the appeal was carried to the Supreme Court by the Collector. The Supreme Court in paragraph 2 of the judgment observed that the question is was the item manufactured a drug or an intermediate in terms of the notification. In paragraph 6 of the judgment the Supreme Court noted that on the facts of the case that Acetic Andydride manufactured was used in the manufacture of the drugs. In view of the finding of fact noticed by the Supreme Court, the question as to whether the end-use of the manufactured product can be considered to determine levy of duty or benefit of exemption notification did not come up for consideration. The supreme Court referred to the decision of the single Judge of Karnataka High Court and where the learned Judge had quoted the observations of Government of India in a revision petition to the following effect:" In the Governments view this requirement of end-use though not built into the exemption notification, is not only implied but also becomes imperative in a situation where the product is used other than as drug intermediate."It is therefore obvious that the Supreme Court has not laid down any such principle, but the head-note merely carves out what was quoted in the order passed by the Government in the revisional jurisdiction and which was noted by the Single Judge of the Karnataka High Court. In our judgment, the reliance on the decision of the Supreme Court in these circumstances is not accurate. In our judgment the petitioners are entitled to the relief.
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In spite of diligent search made by the learned counsel with the assistance of the officers of the Central excise, to trace can be found of any pendency of appeal against the order of the Tribunal. In these circumstances were proceed on the basis that either appeal which is alleged to have been filed in the Supreme Court by the Department was not prosecuted or was dismissed on merits. In these circumstances the question to be determined is whether the petition filed under Article 226 of the Constitution to challenge the direction of the Tribunal in paragraph 26 quoted hereinabove, should be entertained. We are inclined to entertain the petition as the dispute is pending in this Court for last over seven years and driving the parties now to file an appeal to the supreme Court would lead to multiplicity of litigation and considerable expenses. We are conscious that when remedy of appeal is available, this Court is reluctant to exercise writ jurisdiction, but taking into consideration the peculiar facts and circumstances of the case, we are not prepared to accede to the preliminary objection raised by Shri Desai that the petition should not beare afraid we cannot permit the learned counsel to raise this contention, because the Department has not challenged that finding of the Tribunal either by filing petition in this court or by filing appeal before the Supreme Court. The appeal alleged to have been filed is either not filed or stands summarily dismissed. Consequently the conclusion of the Tribunal as regards the nature of product manufactured has become final and it is not open for the department to reagitate in the present proceedings. Shri Desai then submitted that even accepting that Citric Acid is a drug,or pharmaceutical still the finding of the Tribunal that unless the Company established theof the manufactured product, exemption is not available, should not be disturbed. We are afraid we cannot acceded to the submission. It is necessary to reiterate that the impost of excise duty is in respect of manufacture of a product and the liability to pay excise duty accrues as soon as manufactured article comes into existence. The liability to pay duty is not dependent upon theof the product and it is not open for the manufacturer to claim that the liability is dependent upon theof the product and so also to the Department to claim that exemption cannot be claimed till it is established that the manufactured product is used for ultimate manufacture of a drug orThe advantage of exemption cannot be denied with reference tounless exemption notification so provides. In our judgment, in view of the decision recorded by this Court in the case of Rakesh Enterprises, the contention of Shri Desai cannot be accededcareful perusal of the entire judgment of the Supreme Court, it is obvious that the observations set out in theare not the findings or conclusions of the Supreme Court. The issue before the Supreme Court was whether the Acetic Andydride manufactured by the respondents and sold to drug manufacturers is eligible to benefit of exemption under Notification No. 55/75 as amended by Notification No. 62/78 as drug intermediate. The manufacturer has succeed before the tribunal and the appeal was carried to the Supreme Court by the Collector. The Supreme Court in paragraph 2 of the judgment observed that the question is was the item manufactured a drug or an intermediate in terms of the notification. In paragraph 6 of the judgment the Supreme Court noted that on the facts of the case that Acetic Andydride manufactured was used in the manufacture of the drugs. In view of the finding of fact noticed by the Supreme Court, the question as to whether theof the manufactured product can be considered to determine levy of duty or benefit of exemption notification did not come up foris therefore obvious that the Supreme Court has not laid down any such principle, but themerely carves out what was quoted in the order passed by the Government in the revisional jurisdiction and which was noted by the Single Judge of the Karnataka High Court. In our judgment, the reliance on the decision of the Supreme Court in these circumstances is not accurate. In our judgment the petitioners are entitled to the relief.
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Kishan Singh Vs. Financial Commissioner, Haryana and Others | that this copy of the petition is dated November 4, 1965, while the Commissioners order states that the Review Petition was filed before the Collector by the appellant in 1967. However, a copy of the Collectors order dated June 5, 1962 is on the file. It is recited therein by the Collector that Kishan Singh was duly served; he failed to attend; and therefore ex parte proceedings were taken against him. There is no reason to doubt the correctness of this recital.11. The definition in Section 2(2) of the Act states that "permissible area" in relation to a land-owner or a tenant, means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres.12. Presumably, the Collectors order dated August 21, 1961, whereby he held that there was no surplus area with the appellant, was passed under the mistaken impression that the limit of the "permissible area" fixed by the Act in 30 standard acres; while such limit was 60 ordinary acres. The review was entertained by the Collector to correct this mistake. On such review, it was found that the area with the appellant was 93.80 ordinary acres, which was 33.80 acres in excess of the permissible limit. Since the order was passed after service of notice on the appellant, it cannot be said by any stretch of imagination, that there was a violation of the principles of natural justice.13. Section 24 of the Act lays down that the provision in regard to Appeal, Review and Revision under this Act shall, so far as may be, be the same as provided in Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887.14. Section 82 of the Punjab Tenancy Act, relates to Review. It prescribes a period of 90 days limitation from the passing of the order for making a Review Application. This period can be enlarged if the applicant satisfies the Collector that he had sufficient cause for not making the application within that period. Even if the date on the copy of the application for review, now furnished by the appellant is taken as a true copy of the original, then also, this application for review was made about three and a half years after the passing of that order. There is nothing said in this application as to why it was not made within the prescribed period of 90 days. It was thus prima facie time-barred.15. It was contended by the learned counsel for the appellant that the Collector had no power in view of the proviso to Section 82(1) of the Punjab Tenancy Act, which is applicable to such a case to review the earlier order of 1961 which, probably, was passed by his predecessor-in-office.16. The contention must be repelled. It is nowhere alleged in the writ petition or even in the grounds of appeal before this Court, that the earlier order dated August 21, 1961 was not passed by the same person, who has passed the later order dated June 5, 1962, sought to be reviewed.17. Learned counsel further contended that the impugned order dated June 5, 1962 passed by the Collector suffers from an error of law inasmuch as it has calculated the appellants permissible area after including about 20 bighas of banjar and ghair mumkin area in the holding of appellant. Such a plea, in general terms, was taken before the Commissioner, also.18. The order dated November 15, 1967, passed by the Commissioner, (copy of which is on the file) on the Revision application filed by the appellant against the Collectors order dated January 27, 1967, whereby the latter refused to review his order dated August 21, 1961, mentions that the review was sought on the ground that certain area which was banjar jadid or banjar qadim in 1953, was not excluded from his holding in computing his surplus area. The Commissioner, however, dismissed this contention with the observation that, according to the ruling of the Financial Commissioner in R.O.R. 900, 1965-66, Jiwan Singh v. Amrik Singh, the rule laid down by the High Court in Nemi Chand v. State, "had to be given effect, prospectively, and that cases already decided should not be reopened" in the light of the interpretation of law given in the Financial Commissioners ruling. The Commissioner also noted that the Collector had refused to review because the application in this respect was "belated". We have already noticed that it was time-barred, and the Revision could be rejected on this score alone.19. Be that as it may, it seems that even in Revision before the Commissioner, the petitioner did not give the survey numbers or particulars of the land which was alleged to be banjar qadim and ghair mumkin rasta. He simply said that more than 20 acres was banjar qadim and ghair mumkin rasta and, as such, it did not come within the definition of land and should have been excluded from calculation. Even in this writ petition, he did not give particulars of the area alleged to be banjar and ghair mumkin. No extract from the Jamabandi or Khasra Girdawari relating to the year 1953 was filed. The uncertified copy now furnished by the appellant, which purports to be of the Collectors order dated January 27, 1967, does not show that any copy of the Khasra Girdawari or Jamabandi was produced before him even at this stage.20. In the absence of any evidence on the record, learned counsel for the State does not concede that any banjar and ghair mumkin area (beyond 8 biswas) was included in the holding of the appellant for computing the surplus area. At best, it remains a disputed question of fact whether any banjar qadim and ghair mumkin area, has been included in the permissible area of the appellant.21. In the absence of any authentic proof, such as copies of the Jamabandi and Khasra Girdawari of the relevant year, the High Court rightly dismissed the writ petition in limine. | 0[ds]19. Be that as it may, it seems that even in Revision before the Commissioner, the petitioner did not give the survey numbers or particulars of the land which was alleged to be banjar qadim and ghair mumkin rasta. He simply said that more than 20 acres was banjar qadim and ghair mumkin rasta and, as such, it did not come within the definition of land and should have been excluded from calculation. Even in this writ petition, he did not give particulars of the area alleged to be banjar and ghair mumkin. No extract from the Jamabandi or Khasra Girdawari relating to the year 1953 was filed. The uncertified copy now furnished by the appellant, which purports to be of the Collectors order dated January 27, 1967, does not show that any copy of the Khasra Girdawari or Jamabandi was produced before him even at this stage.20. In the absence of any evidence on the record, learned counsel for the State does not concede that any banjar and ghair mumkin area (beyond 8 biswas) was included in the holding of the appellant for computing the surplus area. At best, it remains a disputed question of fact whether any banjar qadim and ghair mumkin area, has been included in the permissible area of the appellant.21. In the absence of any authentic proof, such as copies of the Jamabandi and Khasra Girdawari of the relevant year, the High Court rightly dismissed the writ petition in limine. | 0 | 1,793 | 273 | ### Instruction:
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that this copy of the petition is dated November 4, 1965, while the Commissioners order states that the Review Petition was filed before the Collector by the appellant in 1967. However, a copy of the Collectors order dated June 5, 1962 is on the file. It is recited therein by the Collector that Kishan Singh was duly served; he failed to attend; and therefore ex parte proceedings were taken against him. There is no reason to doubt the correctness of this recital.11. The definition in Section 2(2) of the Act states that "permissible area" in relation to a land-owner or a tenant, means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres.12. Presumably, the Collectors order dated August 21, 1961, whereby he held that there was no surplus area with the appellant, was passed under the mistaken impression that the limit of the "permissible area" fixed by the Act in 30 standard acres; while such limit was 60 ordinary acres. The review was entertained by the Collector to correct this mistake. On such review, it was found that the area with the appellant was 93.80 ordinary acres, which was 33.80 acres in excess of the permissible limit. Since the order was passed after service of notice on the appellant, it cannot be said by any stretch of imagination, that there was a violation of the principles of natural justice.13. Section 24 of the Act lays down that the provision in regard to Appeal, Review and Revision under this Act shall, so far as may be, be the same as provided in Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887.14. Section 82 of the Punjab Tenancy Act, relates to Review. It prescribes a period of 90 days limitation from the passing of the order for making a Review Application. This period can be enlarged if the applicant satisfies the Collector that he had sufficient cause for not making the application within that period. Even if the date on the copy of the application for review, now furnished by the appellant is taken as a true copy of the original, then also, this application for review was made about three and a half years after the passing of that order. There is nothing said in this application as to why it was not made within the prescribed period of 90 days. It was thus prima facie time-barred.15. It was contended by the learned counsel for the appellant that the Collector had no power in view of the proviso to Section 82(1) of the Punjab Tenancy Act, which is applicable to such a case to review the earlier order of 1961 which, probably, was passed by his predecessor-in-office.16. The contention must be repelled. It is nowhere alleged in the writ petition or even in the grounds of appeal before this Court, that the earlier order dated August 21, 1961 was not passed by the same person, who has passed the later order dated June 5, 1962, sought to be reviewed.17. Learned counsel further contended that the impugned order dated June 5, 1962 passed by the Collector suffers from an error of law inasmuch as it has calculated the appellants permissible area after including about 20 bighas of banjar and ghair mumkin area in the holding of appellant. Such a plea, in general terms, was taken before the Commissioner, also.18. The order dated November 15, 1967, passed by the Commissioner, (copy of which is on the file) on the Revision application filed by the appellant against the Collectors order dated January 27, 1967, whereby the latter refused to review his order dated August 21, 1961, mentions that the review was sought on the ground that certain area which was banjar jadid or banjar qadim in 1953, was not excluded from his holding in computing his surplus area. The Commissioner, however, dismissed this contention with the observation that, according to the ruling of the Financial Commissioner in R.O.R. 900, 1965-66, Jiwan Singh v. Amrik Singh, the rule laid down by the High Court in Nemi Chand v. State, "had to be given effect, prospectively, and that cases already decided should not be reopened" in the light of the interpretation of law given in the Financial Commissioners ruling. The Commissioner also noted that the Collector had refused to review because the application in this respect was "belated". We have already noticed that it was time-barred, and the Revision could be rejected on this score alone.19. Be that as it may, it seems that even in Revision before the Commissioner, the petitioner did not give the survey numbers or particulars of the land which was alleged to be banjar qadim and ghair mumkin rasta. He simply said that more than 20 acres was banjar qadim and ghair mumkin rasta and, as such, it did not come within the definition of land and should have been excluded from calculation. Even in this writ petition, he did not give particulars of the area alleged to be banjar and ghair mumkin. No extract from the Jamabandi or Khasra Girdawari relating to the year 1953 was filed. The uncertified copy now furnished by the appellant, which purports to be of the Collectors order dated January 27, 1967, does not show that any copy of the Khasra Girdawari or Jamabandi was produced before him even at this stage.20. In the absence of any evidence on the record, learned counsel for the State does not concede that any banjar and ghair mumkin area (beyond 8 biswas) was included in the holding of the appellant for computing the surplus area. At best, it remains a disputed question of fact whether any banjar qadim and ghair mumkin area, has been included in the permissible area of the appellant.21. In the absence of any authentic proof, such as copies of the Jamabandi and Khasra Girdawari of the relevant year, the High Court rightly dismissed the writ petition in limine.
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19. Be that as it may, it seems that even in Revision before the Commissioner, the petitioner did not give the survey numbers or particulars of the land which was alleged to be banjar qadim and ghair mumkin rasta. He simply said that more than 20 acres was banjar qadim and ghair mumkin rasta and, as such, it did not come within the definition of land and should have been excluded from calculation. Even in this writ petition, he did not give particulars of the area alleged to be banjar and ghair mumkin. No extract from the Jamabandi or Khasra Girdawari relating to the year 1953 was filed. The uncertified copy now furnished by the appellant, which purports to be of the Collectors order dated January 27, 1967, does not show that any copy of the Khasra Girdawari or Jamabandi was produced before him even at this stage.20. In the absence of any evidence on the record, learned counsel for the State does not concede that any banjar and ghair mumkin area (beyond 8 biswas) was included in the holding of the appellant for computing the surplus area. At best, it remains a disputed question of fact whether any banjar qadim and ghair mumkin area, has been included in the permissible area of the appellant.21. In the absence of any authentic proof, such as copies of the Jamabandi and Khasra Girdawari of the relevant year, the High Court rightly dismissed the writ petition in limine.
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C.R. Nagappa Vs. Commissioner of Income Tax, Mysore | concern with what the guardians did with the profits after they had paid the tax on the income from the business; or it was open to the department to proceed against the guardians under Section 41 and to tax in their hands only that income which they bad received on behalf of the minors".It was apparently assumed that it was open to the Income-tax Officer either to assess and tax the guardians and if they were owners of the business and of the income accruing therefrom, or to tax them as trustees under Section 41. In so assuming the Court exalted Sections 40 and 41 into quasi-charging sections. The observation was plainly obiter, for the Income-tax Department had assessed the income in the hands of the guardians as trustees under Section 41.11. In a later judgment of the same High Court, the Court reversed the earlier opinion : Commissioner of Incometax, Ahmedabad v. Balwantrai Jethalal Vaidya, 1958-34 ITR 187 = (AIR 1959 Bom 298 ). The Court held in that case that the liability of trustees to income-tax is co-extensive with that of the beneficiaries and cannot in any case be a larger or wider liability, the assessment is made upon a trustee, his liability to pay tax must be determined in accordance with Section 41 of the Income-tax Act. It was observed in that case that Section 41 gives no option to the Taxing Department to treat the income receive by the trustee on behalf of the beneficiary as his own income or to treat it as the income of the trustee on behalf of the beneficiary. It was further observed :"If the assessment is upon a trustee the tax has to be levied and recovered in the manner provided in Section 41. The only option that the Legislature gives is the option embodied in sub-section (2) of Section 41, and that option is that the Department may assess the beneficiaries instead of the trustees, or having assessed the trustees it may proceed to recover the tax from the beneficiaries. But on principle the contention of the Department cannot be accepted that, when a trustee is being assessed to tax, his burden which will ultimately fall upon the beneficiaries should be increased and whether that burden should be increased or not should be left to the option of the Department. The basic idea underlying Section 41, and which is in conformity with principle, is that the liability of the trustees should be co-extensive with that of the beneficiaries and in no sense a wider or a larger liability. Therefore, it is clear that every case of an assessment against a trustee must fall under Section 41, and it is equally clear that, even though a trustee is being assessed, the assessment must proceed in the manner laid down in Chapter III."The earlier judgment of the Bombay High Court was followed by the Madras High Court in V. Ramaswamy Iyengar v. Commissioner of Income-tax, Madras, 1960-40 ITR 377 (Mad). The principle underlying the judgment in Balwantrai Jethalal Vaidyas case, 1958-34 ITR 187 = (AIR 1959 Bom 298 ) was approved in Birendra Kumar Datta v. Commissioner of Income-tax, Calcutta, 1961-42 ITR 661 = (AIR 1960 Cal 323 ); and A. Razzak v. Commissioner of Income-tax, West Bengal, 1963-48 ITR 276 (Cal).12. In our opinion the observations made in Saifudin Alimohmeds case, 1953-25 ITR 237=(AIR 1954 Bom 219 ) (set out earlier herein) were incorrect. The Legislature while enacting the new Act, to avoid doubts has given effect to the observations made by Chagla, C. J., in Balwantrai Jethalal Vaidyas case, 1958-34 ITR 187 =(AIR 1959 Bom 298 ) and has enacted that where the income is assessable under Ch. XV in the hands of a person in the capacity of a representative assessee it is not liable to be assessed under any other provision of the Act that is, the tax is not liable to be levied under any other provision of the Act.13. In our view Chagla C. J., was right in observing in Balwantrai Jethalal Vaidyas case, 1958-34 ITR 187 =(AIR 1959 Bom 298 ) in dealing with the scheme of Section 41 of the Income-tax Act, 1922, that-";. . . . . . it is clear that every case of an assessment against a trustee must fall under Section 41, and it is equally clear that, even though a trustee is being assessed, the assessment must proceed in the manner laid down in Chapter III.* * * Section 41 only comes into play after the income has been compute in accordance with Chapter III. Then the question of payment of tax arises and it is at that stage that Section 41 issues a mandate "on the Taxing Department that, when they are dealing with the income of a trustee, they must levy the tax and recover it in the manner laid down in Section 41."The same considerations must apply in the interpretation of Section 161 (2) of the Income-tax Act, 1961.14. Sub-section (2) of Section 161 merely enacts that when income is assessed in the hands of a representative assessee in his own name, the assessment shall be deemed to be made upon him in the representative capacity only and tax shall be levied and recovered in the manner provided in sub-section (1).15. It is true that in this case for the assessment year 1962-63 the minors were assessed to tax, but the assessment will not affect the validity of the inclusion of the trust income in the assessment made on Nagappa under Section 64 (v). It was conceded before the High Court on behalf of the Revenue that the assessment of the minor beneficiaries in respect of the income could not stand, in view of the assessment of Nagappa under Section 64 (v).In our view that concession was rightly made, and we have no doubt that all the assessments made against the minor beneficiaries will be annulled and the tax, if any, recovered will be refunded. | 0[ds]It is implicit in the terms of(1) that theOfficer may assess a representative assessee as regards income in respect of which he is a representative assessee, but he is not bound to do so. He may assess either the representative assessee or the person represented byhim.6.The contention raised by Counsel for Nagappa that since the trustees were assessable in respect of the income of the beneficiaries under Section 161 (1), that income could not by virtue of(2) of Section 161 be assessed in the hands of the beneficiary is contrary to the plain terms of Section 166.(2) of Section 161 does not purport to deny theOfficer the option to assess the income in the hands of the person represented by the representative assessee : it merely enacts that when a representative assessee is assessed to tax in exercise of the option of the revenue, he shall be assessed under Chapter XV and shall not in respect of that income be assessed under any other provision of the Act.We will presently state the reasons why the rule was so enacted by the Parliament. But on the plain words used by the Parliament the plea raised by counsel that the representative assessee alone may be assessed as regards income in respect of which he is a representative assessee cannot be accepted.It is clear that in each of the five cases income which in truth is not the income of the assessee is directed in the special conditions prescribed to be included in the total income of the assessee. Where an individual has transferred assets without adequate consideration to another person or association of persons, the income from the assets intended for the benefit immediate or deferred of the spouse or minor child of such individual is, by Clause (v), liable to be included in the income of the individual. There is no doubt that the word "transferred" includes settled under a trust.In our opinion the observations made in Saifudin Alimohmeds case,ITR 237=(AIR 1954 Bom 219 ) (set out earlier herein) were incorrect. The Legislature while enacting the new Act, to avoid doubts has given effect to the observations made by Chagla, C. J., in Balwantrai Jethalal Vaidyas case,ITR 187 =(AIR 1959 Bom 298 ) and has enacted that where the income is assessable under Ch. XV in the hands of a person in the capacity of a representative assessee it is not liable to be assessed under any other provision of the Act that is, the tax is not liable to be levied under any other provision of the Act.13. In our view Chagla C. J., was right in observing in Balwantrai Jethalal Vaidyas case,ITR 187 =(AIR 1959 Bom 298 ) in dealing with the scheme of Section 41 of the;. . . . . . it is clear that every case of an assessment against a trustee must fall under Section 41, and it is equally clear that, even though a trustee is being assessed, the assessment must proceed in the manner laid down in Chapter III.* * * Section 41 only comes into play after the income has been compute in accordance with Chapter III. Then the question of payment of tax arises and it is at that stage that Section 41 issues a mandate "on the Taxing Department that, when they are dealing with the income of a trustee, they must levy the tax and recover it in the manner laid down in Sectionsame considerations must apply in the interpretation of Section 161 (2) of theion (2) of Section 161 merely enacts that when income is assessed in the hands of a representative assessee in his own name, the assessment shall be deemed to be made upon him in the representative capacity only and tax shall be levied and recovered in the manner provided in(1).15. It is true that in this case for the assessment yearthe minors were assessed to tax, but the assessment will not affect the validity of the inclusion of the trust income in the assessment made on Nagappa under Section 64 (v). It was conceded before the High Court on behalf of the Revenue that the assessment of the minor beneficiaries in respect of the income could not stand, in view of the assessment of Nagappa under Section 64 (v).In our view that concession was rightly made, and we have no doubt that all the assessments made against the minor beneficiaries will be annulled and the tax, if any, recovered will be refunded. | 0 | 3,376 | 834 | ### 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:
concern with what the guardians did with the profits after they had paid the tax on the income from the business; or it was open to the department to proceed against the guardians under Section 41 and to tax in their hands only that income which they bad received on behalf of the minors".It was apparently assumed that it was open to the Income-tax Officer either to assess and tax the guardians and if they were owners of the business and of the income accruing therefrom, or to tax them as trustees under Section 41. In so assuming the Court exalted Sections 40 and 41 into quasi-charging sections. The observation was plainly obiter, for the Income-tax Department had assessed the income in the hands of the guardians as trustees under Section 41.11. In a later judgment of the same High Court, the Court reversed the earlier opinion : Commissioner of Incometax, Ahmedabad v. Balwantrai Jethalal Vaidya, 1958-34 ITR 187 = (AIR 1959 Bom 298 ). The Court held in that case that the liability of trustees to income-tax is co-extensive with that of the beneficiaries and cannot in any case be a larger or wider liability, the assessment is made upon a trustee, his liability to pay tax must be determined in accordance with Section 41 of the Income-tax Act. It was observed in that case that Section 41 gives no option to the Taxing Department to treat the income receive by the trustee on behalf of the beneficiary as his own income or to treat it as the income of the trustee on behalf of the beneficiary. It was further observed :"If the assessment is upon a trustee the tax has to be levied and recovered in the manner provided in Section 41. The only option that the Legislature gives is the option embodied in sub-section (2) of Section 41, and that option is that the Department may assess the beneficiaries instead of the trustees, or having assessed the trustees it may proceed to recover the tax from the beneficiaries. But on principle the contention of the Department cannot be accepted that, when a trustee is being assessed to tax, his burden which will ultimately fall upon the beneficiaries should be increased and whether that burden should be increased or not should be left to the option of the Department. The basic idea underlying Section 41, and which is in conformity with principle, is that the liability of the trustees should be co-extensive with that of the beneficiaries and in no sense a wider or a larger liability. Therefore, it is clear that every case of an assessment against a trustee must fall under Section 41, and it is equally clear that, even though a trustee is being assessed, the assessment must proceed in the manner laid down in Chapter III."The earlier judgment of the Bombay High Court was followed by the Madras High Court in V. Ramaswamy Iyengar v. Commissioner of Income-tax, Madras, 1960-40 ITR 377 (Mad). The principle underlying the judgment in Balwantrai Jethalal Vaidyas case, 1958-34 ITR 187 = (AIR 1959 Bom 298 ) was approved in Birendra Kumar Datta v. Commissioner of Income-tax, Calcutta, 1961-42 ITR 661 = (AIR 1960 Cal 323 ); and A. Razzak v. Commissioner of Income-tax, West Bengal, 1963-48 ITR 276 (Cal).12. In our opinion the observations made in Saifudin Alimohmeds case, 1953-25 ITR 237=(AIR 1954 Bom 219 ) (set out earlier herein) were incorrect. The Legislature while enacting the new Act, to avoid doubts has given effect to the observations made by Chagla, C. J., in Balwantrai Jethalal Vaidyas case, 1958-34 ITR 187 =(AIR 1959 Bom 298 ) and has enacted that where the income is assessable under Ch. XV in the hands of a person in the capacity of a representative assessee it is not liable to be assessed under any other provision of the Act that is, the tax is not liable to be levied under any other provision of the Act.13. In our view Chagla C. J., was right in observing in Balwantrai Jethalal Vaidyas case, 1958-34 ITR 187 =(AIR 1959 Bom 298 ) in dealing with the scheme of Section 41 of the Income-tax Act, 1922, that-";. . . . . . it is clear that every case of an assessment against a trustee must fall under Section 41, and it is equally clear that, even though a trustee is being assessed, the assessment must proceed in the manner laid down in Chapter III.* * * Section 41 only comes into play after the income has been compute in accordance with Chapter III. Then the question of payment of tax arises and it is at that stage that Section 41 issues a mandate "on the Taxing Department that, when they are dealing with the income of a trustee, they must levy the tax and recover it in the manner laid down in Section 41."The same considerations must apply in the interpretation of Section 161 (2) of the Income-tax Act, 1961.14. Sub-section (2) of Section 161 merely enacts that when income is assessed in the hands of a representative assessee in his own name, the assessment shall be deemed to be made upon him in the representative capacity only and tax shall be levied and recovered in the manner provided in sub-section (1).15. It is true that in this case for the assessment year 1962-63 the minors were assessed to tax, but the assessment will not affect the validity of the inclusion of the trust income in the assessment made on Nagappa under Section 64 (v). It was conceded before the High Court on behalf of the Revenue that the assessment of the minor beneficiaries in respect of the income could not stand, in view of the assessment of Nagappa under Section 64 (v).In our view that concession was rightly made, and we have no doubt that all the assessments made against the minor beneficiaries will be annulled and the tax, if any, recovered will be refunded.
### Response:
0
### Explanation:
It is implicit in the terms of(1) that theOfficer may assess a representative assessee as regards income in respect of which he is a representative assessee, but he is not bound to do so. He may assess either the representative assessee or the person represented byhim.6.The contention raised by Counsel for Nagappa that since the trustees were assessable in respect of the income of the beneficiaries under Section 161 (1), that income could not by virtue of(2) of Section 161 be assessed in the hands of the beneficiary is contrary to the plain terms of Section 166.(2) of Section 161 does not purport to deny theOfficer the option to assess the income in the hands of the person represented by the representative assessee : it merely enacts that when a representative assessee is assessed to tax in exercise of the option of the revenue, he shall be assessed under Chapter XV and shall not in respect of that income be assessed under any other provision of the Act.We will presently state the reasons why the rule was so enacted by the Parliament. But on the plain words used by the Parliament the plea raised by counsel that the representative assessee alone may be assessed as regards income in respect of which he is a representative assessee cannot be accepted.It is clear that in each of the five cases income which in truth is not the income of the assessee is directed in the special conditions prescribed to be included in the total income of the assessee. Where an individual has transferred assets without adequate consideration to another person or association of persons, the income from the assets intended for the benefit immediate or deferred of the spouse or minor child of such individual is, by Clause (v), liable to be included in the income of the individual. There is no doubt that the word "transferred" includes settled under a trust.In our opinion the observations made in Saifudin Alimohmeds case,ITR 237=(AIR 1954 Bom 219 ) (set out earlier herein) were incorrect. The Legislature while enacting the new Act, to avoid doubts has given effect to the observations made by Chagla, C. J., in Balwantrai Jethalal Vaidyas case,ITR 187 =(AIR 1959 Bom 298 ) and has enacted that where the income is assessable under Ch. XV in the hands of a person in the capacity of a representative assessee it is not liable to be assessed under any other provision of the Act that is, the tax is not liable to be levied under any other provision of the Act.13. In our view Chagla C. J., was right in observing in Balwantrai Jethalal Vaidyas case,ITR 187 =(AIR 1959 Bom 298 ) in dealing with the scheme of Section 41 of the;. . . . . . it is clear that every case of an assessment against a trustee must fall under Section 41, and it is equally clear that, even though a trustee is being assessed, the assessment must proceed in the manner laid down in Chapter III.* * * Section 41 only comes into play after the income has been compute in accordance with Chapter III. Then the question of payment of tax arises and it is at that stage that Section 41 issues a mandate "on the Taxing Department that, when they are dealing with the income of a trustee, they must levy the tax and recover it in the manner laid down in Sectionsame considerations must apply in the interpretation of Section 161 (2) of theion (2) of Section 161 merely enacts that when income is assessed in the hands of a representative assessee in his own name, the assessment shall be deemed to be made upon him in the representative capacity only and tax shall be levied and recovered in the manner provided in(1).15. It is true that in this case for the assessment yearthe minors were assessed to tax, but the assessment will not affect the validity of the inclusion of the trust income in the assessment made on Nagappa under Section 64 (v). It was conceded before the High Court on behalf of the Revenue that the assessment of the minor beneficiaries in respect of the income could not stand, in view of the assessment of Nagappa under Section 64 (v).In our view that concession was rightly made, and we have no doubt that all the assessments made against the minor beneficiaries will be annulled and the tax, if any, recovered will be refunded.
|
NARENDER KUMAR Vs. UNION OF INDIA | to whom the provisions of this Act apply may be determined with reference to any facts, circumstances or events (including any conviction or detention) which occurred or took place before the commencement of this Act." 21. An order of detention under Section 3(1) of COFEPOSA can be made against a person with a view to “prevent him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange” or with a view to prevent him from indulging in activities mentioned in said Section 3(1). If the Advisory Board finds that there is sufficient cause for detention under Section 8(f), the period of detention under Section 10 could be one year or the “specified period” whichever expires later. In cases where a declaration under Section 9 was issued, the maximum period of detention in terms of said Section 10, upon approval being accorded by the Advisory Board, could be two years or the “specified period” whichever period expires later. Explanation to Section 10 states the “specified period” to be the period during which the proclamation of Emergency issued under Article 352 of the Constitution, inter alia, on 25.06.1975 would be in operation. If an order of detention was passed after the commencement of the Amendment Act of 1975 and the officer making the order of detention considered the detention of such person to be necessary for dealing effectively with the Emergency, a proclamation under Section 12A could be issued. The effect of such order passed under Section 3 read with Section 12A of the Act was primarily the subject matter of consideration in the case in Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975). Thus, orders of detention under COFEPOSA can be of three kinds; (a) under Section 3(1) simplicitor, or (b) one passed under Section 3(1) followed by Declaration under Section 9 or (c) one passed under Section 3(1) and Section 12A.22. In terms of Section 2 of SAFEMA, the provisions of said Act would apply inter alia to every person in respect of whom an order of detention had been made under COFEPOSA, subject to proviso contained in Section 2(2) (b). Proviso to said Section 2(2)(b) of SAFEMA then carves out four exceptions to the applicability of substantive provisions to Section 2(2)(b). First three parts of the Proviso deal with three kinds of orders of detention under COFEPOSA as stated above and stipulate that if the order was revoked during the period mentioned therein, the substantive provision would not apply. Part (iv) of the proviso get attracted where the order of detention is set aside by a court of competent jurisdiction. For the substantive provision under Section 2(2)(b) to apply the matter must not be covered under any of those four parts of the proviso. We now see whether the instant matters come within any of those parts of the proviso.23. Part (i) of the proviso to Section 2(2)(b) deals with cases to which Section 9 or Section 12A of COFEPOSA do not apply. In the present case there was neither any declaration under Section 9 nor was there any proclamation under Section 12A. The order of detention was also not passed after the Amendment Act of 1975 came into force. Thus, Section 9 and Section 12A do not apply in the present matter. In terms of said Part (i) of the proviso, if the order of detention was not revoked under the conditions stipulated therein, the substantive provisions of Section 2(2)(b) must apply. In the instant case there was no such revocation and going by the text of Part (i) of the proviso, the provisions of SAFEMA must apply in the instant case. Parts (ii) and (iii) of the proviso are cases where substantive orders of detention to which provisions of Section 9 and Section 12A respectively apply and as such they are not relevant for the present consideration. Part (iv) of the proviso which speaks of cases where order of detention is set aside by a court of competent jurisdiction, applies irrespective whether the matter comes under Section 3(1) simplicitor or comes under Section 9 or Section 12A. The order of detention was not set aside in the present matter and as such Part (iv) is also inapplicable to the present case.24. The order of detention in this case was not revoked under any of the postulates of the proviso nor was it set aside by any competent court and as such the provisions of SAFEMA must apply. The High Court was right in observing that the detention “had run right through the duration or continuance of the emergency”. Though the petition was pending during the length of this time and was taken up for hearing after the lifting of the emergency, no attempts were made to have the petition disposed of on merits. Pertinently, the notices under SAFEMA were issued to Roshan Lal and his wife Sheelawati while the possibility that the SAFEMA proceedings could be premised on the validity of the detention order was very much alive and yet, the matter was chosen not to be agitated on merits. The criticism of Mr. Bagai, learned Advocate that the High Court had overruled the order dated 24.02.2004 passed by this Court, is totally incorrect. Nonetheless, we proceed to consider the submissions raised by Mr. Bagai, learned Advocate regarding challenge on merits.25. In the present case, the representation dated 17.01.1975 was considered by the State on 11.02.1975 and the rejection was communicated to the detenu. Moreover, at no stage, any grievance was raised that the grounds of detention were not communicated to him in a language known to him. Similarly, the submission that the grounds of detention were identical, is also without any merit. Insofar as the order of detention under COFEPOSA was concerned, the grounds dealt with instances where the detenu had indulged in smuggling of goods, on the basis of which subjective satisfaction was arrived at as regards his propensity to deal in smuggled goods. | 0[ds]19. Question No.2 framed in Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975) related to cases where orders of detention under Section 3 read with Section 12A of COFEPOSA were made during the period of Emergency proclaimed under Article 352(1) of the Constitution of India. The decision in Haji Mastan Mirzawhich was considered in paras 40 and 41, however, pertained to different factual scenario. In Haji Mastan Mirza, as indicated in para 41 in the decision of Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975), the order of detention was made long prior to the proclamation of emergency on 25.6.1975. The Bench of nine Judges in Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975) found that it was not possible to agree with the view taken in Haji Mastan Mirza. It was observed that the matter could be considered from two perspectives; First, if it was an order of detention to which Section 12A of COFEPOSA did not apply and if the detenu did not challenge the order of detention or challenged it unsuccessfully, there was no reason why he should be allowed to challenge it when action under SAFEMA was taken against him. Secondly, if the order of detention was governed under Section 12A, such order of detention could still be challenged during the period of Emergency and the challenge could be confined to grounds which were open or available during the period of Emergency. In the concluding part of the paragraph it was observed that failure to challenge the detention directly when he was detained, precluded the detenu from challenging it after the cessation of detention where such detention was made the basis for initiating action in SAFEMA.In the present case the order of detention under COFEPOSA was passed on 19.12.1974 and the petition challenging the detention was filed on 29.04.1975 i.e. before the proclamation of emergency was issued on 25.06.1975. The detenu was released after the lifting of the emergency. All through, the Writ Petition was alive and pending in High Court and it was disposed of as having become infructuous on the statement made by the counsel for the Writ Petitioner on 24.02.1978. The instant case is thus covered by para 41 of the decision of this Court in Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975). However, since the matter was remitted by this Court on 24.02.2004, to be disposed of on merits, we now proceed to consider whether merits were rightly considered.An order of detention under Section 3(1) of COFEPOSA can be made against a person with a view tohim from acting in any manner prejudicial to the conservation or augmentation of foreignor with a view to prevent him from indulging in activities mentioned in said Section 3(1). If the Advisory Board finds that there is sufficient cause for detention under Section 8(f), the period of detention under Section 10 could be one year or theer expires later. In cases where a declaration under Section 9 was issued, the maximum period of detention in terms of said Section 10, upon approval being accorded by the Advisory Board, could be two years or theer period expires later. Explanation to Section 10 states theto be the period during which the proclamation of Emergency issued under Article 352 of the Constitution, inter alia, on 25.06.1975 would be in operation. If an order of detention was passed after the commencement of the Amendment Act of 1975 and the officer making the order of detention considered the detention of such person to be necessary for dealing effectively with the Emergency, a proclamation under Section 12A could be issued. The effect of such order passed under Section 3 read with Section 12A of the Act was primarily the subject matter of consideration in the case in Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975). Thus, orders of detention under COFEPOSA can be of three kinds; (a) under Section 3(1) simplicitor, or (b) one passed under Section 3(1) followed by Declaration under Section 9 or (c) one passed under Section 3(1) and Section 12A.In terms of Section 2 of SAFEMA, the provisions of said Act would apply inter alia to every person in respect of whom an order of detention had been made under COFEPOSA, subject to proviso contained in Section 2(2) (b). Proviso to said Section 2(2)(b) of SAFEMA then carves out four exceptions to the applicability of substantive provisions to Section 2(2)(b). First three parts of the Proviso deal with three kinds of orders of detention under COFEPOSA as stated above and stipulate that if the order was revoked during the period mentioned therein, the substantive provision would not apply. Part (iv) of the proviso get attracted where the order of detention is set aside by a court of competent jurisdiction. For the substantive provision under Section 2(2)(b) to apply the matter must not be covered under any of those four parts of the proviso. We now see whether the instant matters come within any of those parts of the proviso.Part (i) of the proviso to Section 2(2)(b) deals with cases to which Section 9 or Section 12A of COFEPOSA do not apply. In the present case there was neither any declaration under Section 9 nor was there any proclamation under Section 12A. The order of detention was also not passed after the Amendment Act of 1975 came into force. Thus, Section 9 and Section 12A do not apply in the present matter. In terms of said Part (i) of the proviso, if the order of detention was not revoked under the conditions stipulated therein, the substantive provisions of Section 2(2)(b) must apply. In the instant case there was no such revocation and going by the text of Part (i) of the proviso, the provisions of SAFEMA must apply in the instant case. Parts (ii) and (iii) of the proviso are cases where substantive orders of detention to which provisions of Section 9 and Section 12A respectively apply and as such they are not relevant for the present consideration. Part (iv) of the proviso which speaks of cases where order of detention is set aside by a court of competent jurisdiction, applies irrespective whether the matter comes under Section 3(1) simplicitor or comes under Section 9 or Section 12A. The order of detention was not set aside in the present matter and as such Part (iv) is also inapplicable to the present case.The order of detention in this case was not revoked under any of the postulates of the proviso nor was it set aside by any competent court and as such the provisions of SAFEMA must apply. The High Court was right in observing that the detentionrun right through the duration or continuance of theThough the petition was pending during the length of this time and was taken up for hearing after the lifting of the emergency, no attempts were made to have the petition disposed of on merits. Pertinently, the notices under SAFEMA were issued to Roshan Lal and his wife Sheelawati while the possibility that the SAFEMA proceedings could be premised on the validity of the detention order was very much alive and yet, the matter was chosen not to be agitated on merits. The criticism of Mr. Bagai, learned Advocate that the High Court had overruled the order dated 24.02.2004 passed by this Court, is totally incorrect. Nonetheless, we proceed to consider the submissions raised by Mr. Bagai, learned Advocate regarding challenge on merits.In the present case, the representation dated 17.01.1975 was considered by the State on 11.02.1975 and the rejection was communicated to the detenu. Moreover, at no stage, any grievance was raised that the grounds of detention were not communicated to him in a language known to him. Similarly, the submission that the grounds of detention were identical, is also without any merit. Insofar as the order of detention under COFEPOSA was concerned, the grounds dealt with instances where the detenu had indulged in smuggling of goods, on the basis of which subjective satisfaction was arrived at as regards his propensity to deal in smuggled goods.The detention order was sought to be assailed before the High Court inter alia on the grounds of non-supply of documents; delay in passing the order of detention and supply of illegible documents. Those grounds were found to be without any substance by the High Court and the challenge so raised was negated. | 0 | 8,220 | 1,622 | ### 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:
to whom the provisions of this Act apply may be determined with reference to any facts, circumstances or events (including any conviction or detention) which occurred or took place before the commencement of this Act." 21. An order of detention under Section 3(1) of COFEPOSA can be made against a person with a view to “prevent him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange” or with a view to prevent him from indulging in activities mentioned in said Section 3(1). If the Advisory Board finds that there is sufficient cause for detention under Section 8(f), the period of detention under Section 10 could be one year or the “specified period” whichever expires later. In cases where a declaration under Section 9 was issued, the maximum period of detention in terms of said Section 10, upon approval being accorded by the Advisory Board, could be two years or the “specified period” whichever period expires later. Explanation to Section 10 states the “specified period” to be the period during which the proclamation of Emergency issued under Article 352 of the Constitution, inter alia, on 25.06.1975 would be in operation. If an order of detention was passed after the commencement of the Amendment Act of 1975 and the officer making the order of detention considered the detention of such person to be necessary for dealing effectively with the Emergency, a proclamation under Section 12A could be issued. The effect of such order passed under Section 3 read with Section 12A of the Act was primarily the subject matter of consideration in the case in Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975). Thus, orders of detention under COFEPOSA can be of three kinds; (a) under Section 3(1) simplicitor, or (b) one passed under Section 3(1) followed by Declaration under Section 9 or (c) one passed under Section 3(1) and Section 12A.22. In terms of Section 2 of SAFEMA, the provisions of said Act would apply inter alia to every person in respect of whom an order of detention had been made under COFEPOSA, subject to proviso contained in Section 2(2) (b). Proviso to said Section 2(2)(b) of SAFEMA then carves out four exceptions to the applicability of substantive provisions to Section 2(2)(b). First three parts of the Proviso deal with three kinds of orders of detention under COFEPOSA as stated above and stipulate that if the order was revoked during the period mentioned therein, the substantive provision would not apply. Part (iv) of the proviso get attracted where the order of detention is set aside by a court of competent jurisdiction. For the substantive provision under Section 2(2)(b) to apply the matter must not be covered under any of those four parts of the proviso. We now see whether the instant matters come within any of those parts of the proviso.23. Part (i) of the proviso to Section 2(2)(b) deals with cases to which Section 9 or Section 12A of COFEPOSA do not apply. In the present case there was neither any declaration under Section 9 nor was there any proclamation under Section 12A. The order of detention was also not passed after the Amendment Act of 1975 came into force. Thus, Section 9 and Section 12A do not apply in the present matter. In terms of said Part (i) of the proviso, if the order of detention was not revoked under the conditions stipulated therein, the substantive provisions of Section 2(2)(b) must apply. In the instant case there was no such revocation and going by the text of Part (i) of the proviso, the provisions of SAFEMA must apply in the instant case. Parts (ii) and (iii) of the proviso are cases where substantive orders of detention to which provisions of Section 9 and Section 12A respectively apply and as such they are not relevant for the present consideration. Part (iv) of the proviso which speaks of cases where order of detention is set aside by a court of competent jurisdiction, applies irrespective whether the matter comes under Section 3(1) simplicitor or comes under Section 9 or Section 12A. The order of detention was not set aside in the present matter and as such Part (iv) is also inapplicable to the present case.24. The order of detention in this case was not revoked under any of the postulates of the proviso nor was it set aside by any competent court and as such the provisions of SAFEMA must apply. The High Court was right in observing that the detention “had run right through the duration or continuance of the emergency”. Though the petition was pending during the length of this time and was taken up for hearing after the lifting of the emergency, no attempts were made to have the petition disposed of on merits. Pertinently, the notices under SAFEMA were issued to Roshan Lal and his wife Sheelawati while the possibility that the SAFEMA proceedings could be premised on the validity of the detention order was very much alive and yet, the matter was chosen not to be agitated on merits. The criticism of Mr. Bagai, learned Advocate that the High Court had overruled the order dated 24.02.2004 passed by this Court, is totally incorrect. Nonetheless, we proceed to consider the submissions raised by Mr. Bagai, learned Advocate regarding challenge on merits.25. In the present case, the representation dated 17.01.1975 was considered by the State on 11.02.1975 and the rejection was communicated to the detenu. Moreover, at no stage, any grievance was raised that the grounds of detention were not communicated to him in a language known to him. Similarly, the submission that the grounds of detention were identical, is also without any merit. Insofar as the order of detention under COFEPOSA was concerned, the grounds dealt with instances where the detenu had indulged in smuggling of goods, on the basis of which subjective satisfaction was arrived at as regards his propensity to deal in smuggled goods.
### Response:
0
### Explanation:
consider whether merits were rightly considered.An order of detention under Section 3(1) of COFEPOSA can be made against a person with a view tohim from acting in any manner prejudicial to the conservation or augmentation of foreignor with a view to prevent him from indulging in activities mentioned in said Section 3(1). If the Advisory Board finds that there is sufficient cause for detention under Section 8(f), the period of detention under Section 10 could be one year or theer expires later. In cases where a declaration under Section 9 was issued, the maximum period of detention in terms of said Section 10, upon approval being accorded by the Advisory Board, could be two years or theer period expires later. Explanation to Section 10 states theto be the period during which the proclamation of Emergency issued under Article 352 of the Constitution, inter alia, on 25.06.1975 would be in operation. If an order of detention was passed after the commencement of the Amendment Act of 1975 and the officer making the order of detention considered the detention of such person to be necessary for dealing effectively with the Emergency, a proclamation under Section 12A could be issued. The effect of such order passed under Section 3 read with Section 12A of the Act was primarily the subject matter of consideration in the case in Amratlal Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act (35 of 1975). Thus, orders of detention under COFEPOSA can be of three kinds; (a) under Section 3(1) simplicitor, or (b) one passed under Section 3(1) followed by Declaration under Section 9 or (c) one passed under Section 3(1) and Section 12A.In terms of Section 2 of SAFEMA, the provisions of said Act would apply inter alia to every person in respect of whom an order of detention had been made under COFEPOSA, subject to proviso contained in Section 2(2) (b). Proviso to said Section 2(2)(b) of SAFEMA then carves out four exceptions to the applicability of substantive provisions to Section 2(2)(b). First three parts of the Proviso deal with three kinds of orders of detention under COFEPOSA as stated above and stipulate that if the order was revoked during the period mentioned therein, the substantive provision would not apply. Part (iv) of the proviso get attracted where the order of detention is set aside by a court of competent jurisdiction. For the substantive provision under Section 2(2)(b) to apply the matter must not be covered under any of those four parts of the proviso. We now see whether the instant matters come within any of those parts of the proviso.Part (i) of the proviso to Section 2(2)(b) deals with cases to which Section 9 or Section 12A of COFEPOSA do not apply. In the present case there was neither any declaration under Section 9 nor was there any proclamation under Section 12A. The order of detention was also not passed after the Amendment Act of 1975 came into force. Thus, Section 9 and Section 12A do not apply in the present matter. In terms of said Part (i) of the proviso, if the order of detention was not revoked under the conditions stipulated therein, the substantive provisions of Section 2(2)(b) must apply. In the instant case there was no such revocation and going by the text of Part (i) of the proviso, the provisions of SAFEMA must apply in the instant case. Parts (ii) and (iii) of the proviso are cases where substantive orders of detention to which provisions of Section 9 and Section 12A respectively apply and as such they are not relevant for the present consideration. Part (iv) of the proviso which speaks of cases where order of detention is set aside by a court of competent jurisdiction, applies irrespective whether the matter comes under Section 3(1) simplicitor or comes under Section 9 or Section 12A. The order of detention was not set aside in the present matter and as such Part (iv) is also inapplicable to the present case.The order of detention in this case was not revoked under any of the postulates of the proviso nor was it set aside by any competent court and as such the provisions of SAFEMA must apply. The High Court was right in observing that the detentionrun right through the duration or continuance of theThough the petition was pending during the length of this time and was taken up for hearing after the lifting of the emergency, no attempts were made to have the petition disposed of on merits. Pertinently, the notices under SAFEMA were issued to Roshan Lal and his wife Sheelawati while the possibility that the SAFEMA proceedings could be premised on the validity of the detention order was very much alive and yet, the matter was chosen not to be agitated on merits. The criticism of Mr. Bagai, learned Advocate that the High Court had overruled the order dated 24.02.2004 passed by this Court, is totally incorrect. Nonetheless, we proceed to consider the submissions raised by Mr. Bagai, learned Advocate regarding challenge on merits.In the present case, the representation dated 17.01.1975 was considered by the State on 11.02.1975 and the rejection was communicated to the detenu. Moreover, at no stage, any grievance was raised that the grounds of detention were not communicated to him in a language known to him. Similarly, the submission that the grounds of detention were identical, is also without any merit. Insofar as the order of detention under COFEPOSA was concerned, the grounds dealt with instances where the detenu had indulged in smuggling of goods, on the basis of which subjective satisfaction was arrived at as regards his propensity to deal in smuggled goods.The detention order was sought to be assailed before the High Court inter alia on the grounds of non-supply of documents; delay in passing the order of detention and supply of illegible documents. Those grounds were found to be without any substance by the High Court and the challenge so raised was negated.
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Zoroastrian Co-operative Housing Society Limited and Anr Vs. District Registrar Co-operative Societies and Ors | respondent No.3 as a member in the Society is that the bye-law confining membership to a person belonging to the Parsi community and the insistence on respondent No.2 selling the building or the flats therein only to members of the Parsi community who alone are qualified to be members of the Society, would amount to an absolute restraint on alienation within the meaning of Section 10 of Transfer of Property Act. Section 10 of the Transfer of Property Act cannot have any application to transfer of membership. Transfer of membership is regulated by the bye-laws. The bye-laws in that regard are not in challenge and cannot effectively be challenged in view of what was have held above. Section 30 of the Act itself places restriction in that regard. There is no plea of invalidity attached to that provision. Hence, the restriction in that regard cannot be invalidated or ignored by reference to Section 10 of the Transfer of Property Act.35. Section 10 of the Transfer of Property Act relieves a transferee of immoveable property from an absolute restraint placed on his right to deal with the property in his capacity as an owner thereof. As per Section 10, a condition restraining alienation would be void. The Section applies to a case where property is transferred subject to a condition or limitation absolutely restraining the transferee from parting with his interest in the property. For making such a condition invalid, the restraint must be an absolute restraint. It must be a restraint imposed while the property is being transferred to the transferee. Here, respondent No.2 became a member of the Society on the death of his father. He subscribed to the bye-laws. He accepted Section 30 of the Act and the other restrictions placed on a member. Respondent No.2 was qualified to be a member in terms of the bye-laws. His father was also a member of the Society. The allotment of the property was made to appellant in his capacity as a member. There was really no transfer of property to respondent No.2. He inherited it with the limitations thereon placed by Section 31 of the Act and the bye-laws. His right to become a member depended on his possessing the qualification to become one as per the bye-laws of the Society. He possessed that qualification. The bye-laws provide that he should have the prior consent of the Society for transferring the property or his membership to a person qualified to be a member of the Society. These are restrictions in the interests of the Society and its members and consistent with the object with which the Society was formed. He cannot question that restriction. It is also not possible to say that such a restriction amounts to an absolute restraint on alienation within the meaning of Section 10 of the Transfer of Property Act. 36. The restriction, if any, is a self-imposed restriction. It is a restriction in a compact to which the father of respondent No.2 was a party and to which respondent No.2 voluntarily became a party. It is difficult to postulate that such a qualified freedom to transfer a property accepted by a person voluntarily, would attract Section 10 of the Act. Moreover, it is not as if it is an absolute restraint on alienation. Respondent No.2 has the right to transfer the property to a person who is qualified to be a member of the Society as per its bye-laws. At best, it is a partial restraint on alienation. Such partial restraints are valid if imposed in a family settlement, partition or compromise of disputed claims. This is clear from the decision of the Privy Council in Mohammad Raza vs. Mt. Abhas Bandi Bibi, ALR 59 I.A. 236 and also from the decision of the Supreme Court in Gummanna Shetty and others vs. Nagaveniamma, AIR 1967 SC 1595 . So, when a person accepts membership in a cooperative society by submitting himself to its bye-laws and secures an allotment of a plot of land or a building in terms of the bye-laws and places on himself a qualified restriction in his right to transfer the property by stipulating that the same would be transferred back to the society or with the prior consent of the society to a person qualified to be a member of the society, it cannot be held to be an absolute restraint on alienation offending Section 10 of the Transfer of Property Act. He has placed that restriction on himself in the interest of the collective body, the society. He has voluntarily submerged his rights in that of the society. 37. The fact that the rights of a member or an allottee over a building or plot is attachable and saleable in enforcement of a decree or an obligation against him cannot make a provision like the one found in the bye-laws, an absolute restraint on alienation to attract Section 10 of the Transfer of Property Act. Of course, it is property in the hands of the member of the strength of the allotment. It may also be attachable and saleable in spite of the volition of the allottee. But that does not enable the Court to hold that the condition that an allotment to the member is subject to his possessing the qualification to be a member of the cooperative society or that a voluntary transfer by him could be made only to the society itself to another person qualified to be a member of the society and with the consent of the society could straight away be declared to be an absolute restraint on alienation and consequently an interference with his right to property protected by Article 300A of the Constitution of India. We are, therefore, satisfied that the finding that the restriction placed on rights of a member of the Society to deal with the property allotted to him must be deemed to be invalid as an absolute restraint of alienation is erroneous. The said finding is reversed. | 1[ds]17. It appears to us that unless appropriate amendments are brought to the various Cooperative Societies Acts incorporating a policy that no society shall be formed or if formed, membership in no society shall be confined to persons of a particular persuasion, religion, belief or region, it could not be said that a society would be disentitled to refuse membership to a person who is not duly qualified to be one in terms of its bye-laws.bye-laws.19. It is true that it is very tempting to accept an argument that Articles 14 and 15 read in the light of the preamble to the Constitution of India reflect the thinking of our Constitution makers and prevents any discrimination based on religion or origin in the matter of equal treatment or employment and to apply the same even in respect of a co-operative society. But, while being thus, tempted, the Court must also consider what lies behind the formation of co-operative societies and what their character is and how they are to be run as envisaged by the various Cooperative Societies Acts prevalent in the various States of this Country. Running through the Cooperative Societies Act, is the theory of area of operation. That means that membership could be denied to a citizen of this Country who is located outside the area of operation of a society. Does he not have a fundamental right to settle down in any part of the country or carry on a trade or business in any part of the country? Does not that right carry with it, the right to apply for membership in any cooperative society irrespective of the fact that he is a person hailing from an area outside the area of operation of the society? In the name of enforcing public policy, can a Registrar permit such a member to be enrolled? Will it not then go against the very concept of limiting the areas of operation of cooperative societies? It is, in this context that we are inclined to the view that public policy in terms of a particular entity must be as reflected by the statute that creates the entity or governs it and on the Rules for creation of such an entity. Tested from that angle, so long as there is no amendment brought to the Cooperative Societies Acts in the various States, it would not be permissible to direct the societies to go against their bye-laws restricting membership based on its own criteria.The argument that public policy is as reflected by the constitutional guarantees, which govern rights and obligations has to be approached with caution. It will be easy for State Legislatures to provide in their respective Co-operative Societies Acts that no society could be formed or registered under the Act as confined to a group, a sex, a religion or members of a particular persuasion or way of life. But that is different from saying that in the name of open membership, subject to its bye-laws contemplated by the relevant provisions of the Act, a direction could be issued to ignore the bye-laws and to admit a person who is not qualified to become a member. Moreover, what is public policy in the context of a co-operative society got registered by certain persons coming together and laying down a qualification for membership in that society, is a question that has to be considered essentially in the context of the availability of such a right in India to form such associations and the absence of a prohibition in that behalf contained in the Co-operative Societies Act and the Rules. In fact, the Act and the Rules contemplate classification of a society and even there, no prohibition has been indicated in respect of the confining of the membership to a class of people. The decisions of the Bombay High Court relied on by counsel for the respondent, in our view, have proceeded on the basis of the concept of open membership without giving adequate importance to the provision in the very section that the open membership is subject to bye-laws of the society or the qualification prescribed for membership in the society. In that context, it is not possible to import ones inherent abhorrence to religious groups or other groups coming together to form, what learned counsel for the respondent called ghettos. That is certainly an important aspect but that is an aspect that has to be tackled by the legislature and not by the authorities under the Act directing the co-operative society to go against its own bye-laws or by the courts upholding such orders of the authorities, based on presumed public policy when the Act itself does not warrant it or sanction it.It is true that in secular India it may be somewhat retrograde to conceive of co-operative societies confined to group of members or followers of a particular religion, a particular mode of life, a particular persuasion. But that is different from saying that you cannot have a co-operative society confined to persons of a particular persuasion, belief trade, way of life or a religion. A co-operative society is not a state unless the tests indicated in Ajay Hasia are satisfied. There is no case here that the appellant society satisfies the tests laid down by Ajay Hasia so as to be considered to be a state within the meaning of Article 12 of the Constitution. The fundamental rights in Part III of the Constitution are normally enforced against State action or action by other authorities who may come within the purview of Article 12 of the Constitution. It is not possible to argue that a person has a fundamental right to become a member of a voluntary association or of a co-operative society governed by its own bye-laws. So long as this position holds, we are of the view that it is not possible, especially for a Registrar who is an authority under The Co-operative societies Act, to direct a co-operative society to admit as a member, a person who does not qualify to be a member as per the bye-laws registered under the Act. Nor can a Registrar direct in terms of Section 14 of the Act to amend the bye-laws since it could not be said that such an amendment, as directed in this case is necessary or desirable in the interests of the appellant society. What is relevant under Section 14 of the Act is the interests of the society and the necessity in the context of that interest. It is not the interest of an individual member or an aspirant to a membership.27. It is true that in the activities of a society, as envisaged by the bye-laws, the society may acquire rights or incur obligations which may be enforced. But the incurring of such an obligation or the acquiring of such a right, cannot stand in the way of the right to form an association guaranteed by Article 19(1)(c) of the Constitution available to the members of the society who formed themselves into the appellant Society. The position under the Bombay Co-operative Societies Act under which the Society was originally formed was also no different as can be seen from the relevant provisions of the Act. It, therefore, appears to us to be not open to the Registrar or any other authority under The Co-operative Societies Act to direct the Society to go against its own bye-laws and to admit a person to membership as has been sought to be done in this case.The above conclusion would lead us to the question whether there is anything in The Gujarat Co-operative Societies Act and the Gujarat Co-operative Societies Rules restricting the rights of the citizens to form a voluntary association and get it registered under the Co-operative Societies Act confining its membership to a particular set of people recognized by their profession, their sex, their work or the position they hold or with reference to their beliefs, either religious or otherwise. It is not contended that there is any provision in the Gujarat Co-operative Societies Act prohibiting the registration of such a co-operative society. We have already referred to the history of the legislation and the concept of confinement of membership based on residence, belief or community. The concept of open membership, as envisaged by Section 24 of the Act is not absolute on the very wording of that Section. The availability of membership is subject to the qualification prescribed under the provisions of the Act, the Rules and the bye-laws of such society. In other words, if the relevant bye-law of society places any restriction on a person getting admitted to a co-operative society, that bye-law would be operative against him and no person, or aspiring member, can be heard to say that he will not be bound by that law which prescribes a qualification for his membership.31. In our view, the High Court made a wrong approach to the question of whether a bye-law like bye-law No. 7 could be ignored by a member and whether the Authorities under the Act and the court could ignore the same on the basis that it is opposed to public policy being against the constitutional scheme of equality or non-discrimination relating to employment, vocation and such. So long as the approved bye-law stands and the Act does not provide for invalidity of such a bye-law or for interdicting the formation of co-operative societies confined to persons of a particular vocation, a particular community, a particular persuasion or a particular sex, it could not be held that the formation of such a society under the Act would be opposed to public policy and consequently liable to be declared void or the society directed to amend its basic bye-law relating to qualification for membership.Another ground relied on by the Authorities under the Act and the High Court to direct the acceptance of respondent No.3 as a member in the Society is that the bye-law confining membership to a person belonging to the Parsi community and the insistence on respondent No.2 selling the building or the flats therein only to members of the Parsi community who alone are qualified to be members of the Society, would amount to an absolute restraint on alienation within the meaning of Section 10 of Transfer of Property Act. Section 10 of the Transfer of Property Act cannot have any application to transfer of membership. Transfer of membership is regulated by the bye-laws. The bye-laws in that regard are not in challenge and cannot effectively be challenged in view of what was have held above. Section 30 of the Act itself places restriction in that regard. There is no plea of invalidity attached to that provision. Hence, the restriction in that regard cannot be invalidated or ignored by reference to Section 10 of the Transfer of Property Act. | 1 | 14,728 | 1,925 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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respondent No.3 as a member in the Society is that the bye-law confining membership to a person belonging to the Parsi community and the insistence on respondent No.2 selling the building or the flats therein only to members of the Parsi community who alone are qualified to be members of the Society, would amount to an absolute restraint on alienation within the meaning of Section 10 of Transfer of Property Act. Section 10 of the Transfer of Property Act cannot have any application to transfer of membership. Transfer of membership is regulated by the bye-laws. The bye-laws in that regard are not in challenge and cannot effectively be challenged in view of what was have held above. Section 30 of the Act itself places restriction in that regard. There is no plea of invalidity attached to that provision. Hence, the restriction in that regard cannot be invalidated or ignored by reference to Section 10 of the Transfer of Property Act.35. Section 10 of the Transfer of Property Act relieves a transferee of immoveable property from an absolute restraint placed on his right to deal with the property in his capacity as an owner thereof. As per Section 10, a condition restraining alienation would be void. The Section applies to a case where property is transferred subject to a condition or limitation absolutely restraining the transferee from parting with his interest in the property. For making such a condition invalid, the restraint must be an absolute restraint. It must be a restraint imposed while the property is being transferred to the transferee. Here, respondent No.2 became a member of the Society on the death of his father. He subscribed to the bye-laws. He accepted Section 30 of the Act and the other restrictions placed on a member. Respondent No.2 was qualified to be a member in terms of the bye-laws. His father was also a member of the Society. The allotment of the property was made to appellant in his capacity as a member. There was really no transfer of property to respondent No.2. He inherited it with the limitations thereon placed by Section 31 of the Act and the bye-laws. His right to become a member depended on his possessing the qualification to become one as per the bye-laws of the Society. He possessed that qualification. The bye-laws provide that he should have the prior consent of the Society for transferring the property or his membership to a person qualified to be a member of the Society. These are restrictions in the interests of the Society and its members and consistent with the object with which the Society was formed. He cannot question that restriction. It is also not possible to say that such a restriction amounts to an absolute restraint on alienation within the meaning of Section 10 of the Transfer of Property Act. 36. The restriction, if any, is a self-imposed restriction. It is a restriction in a compact to which the father of respondent No.2 was a party and to which respondent No.2 voluntarily became a party. It is difficult to postulate that such a qualified freedom to transfer a property accepted by a person voluntarily, would attract Section 10 of the Act. Moreover, it is not as if it is an absolute restraint on alienation. Respondent No.2 has the right to transfer the property to a person who is qualified to be a member of the Society as per its bye-laws. At best, it is a partial restraint on alienation. Such partial restraints are valid if imposed in a family settlement, partition or compromise of disputed claims. This is clear from the decision of the Privy Council in Mohammad Raza vs. Mt. Abhas Bandi Bibi, ALR 59 I.A. 236 and also from the decision of the Supreme Court in Gummanna Shetty and others vs. Nagaveniamma, AIR 1967 SC 1595 . So, when a person accepts membership in a cooperative society by submitting himself to its bye-laws and secures an allotment of a plot of land or a building in terms of the bye-laws and places on himself a qualified restriction in his right to transfer the property by stipulating that the same would be transferred back to the society or with the prior consent of the society to a person qualified to be a member of the society, it cannot be held to be an absolute restraint on alienation offending Section 10 of the Transfer of Property Act. He has placed that restriction on himself in the interest of the collective body, the society. He has voluntarily submerged his rights in that of the society. 37. The fact that the rights of a member or an allottee over a building or plot is attachable and saleable in enforcement of a decree or an obligation against him cannot make a provision like the one found in the bye-laws, an absolute restraint on alienation to attract Section 10 of the Transfer of Property Act. Of course, it is property in the hands of the member of the strength of the allotment. It may also be attachable and saleable in spite of the volition of the allottee. But that does not enable the Court to hold that the condition that an allotment to the member is subject to his possessing the qualification to be a member of the cooperative society or that a voluntary transfer by him could be made only to the society itself to another person qualified to be a member of the society and with the consent of the society could straight away be declared to be an absolute restraint on alienation and consequently an interference with his right to property protected by Article 300A of the Constitution of India. We are, therefore, satisfied that the finding that the restriction placed on rights of a member of the Society to deal with the property allotted to him must be deemed to be invalid as an absolute restraint of alienation is erroneous. The said finding is reversed.
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followers of a particular religion, a particular mode of life, a particular persuasion. But that is different from saying that you cannot have a co-operative society confined to persons of a particular persuasion, belief trade, way of life or a religion. A co-operative society is not a state unless the tests indicated in Ajay Hasia are satisfied. There is no case here that the appellant society satisfies the tests laid down by Ajay Hasia so as to be considered to be a state within the meaning of Article 12 of the Constitution. The fundamental rights in Part III of the Constitution are normally enforced against State action or action by other authorities who may come within the purview of Article 12 of the Constitution. It is not possible to argue that a person has a fundamental right to become a member of a voluntary association or of a co-operative society governed by its own bye-laws. So long as this position holds, we are of the view that it is not possible, especially for a Registrar who is an authority under The Co-operative societies Act, to direct a co-operative society to admit as a member, a person who does not qualify to be a member as per the bye-laws registered under the Act. Nor can a Registrar direct in terms of Section 14 of the Act to amend the bye-laws since it could not be said that such an amendment, as directed in this case is necessary or desirable in the interests of the appellant society. What is relevant under Section 14 of the Act is the interests of the society and the necessity in the context of that interest. It is not the interest of an individual member or an aspirant to a membership.27. It is true that in the activities of a society, as envisaged by the bye-laws, the society may acquire rights or incur obligations which may be enforced. But the incurring of such an obligation or the acquiring of such a right, cannot stand in the way of the right to form an association guaranteed by Article 19(1)(c) of the Constitution available to the members of the society who formed themselves into the appellant Society. The position under the Bombay Co-operative Societies Act under which the Society was originally formed was also no different as can be seen from the relevant provisions of the Act. It, therefore, appears to us to be not open to the Registrar or any other authority under The Co-operative Societies Act to direct the Society to go against its own bye-laws and to admit a person to membership as has been sought to be done in this case.The above conclusion would lead us to the question whether there is anything in The Gujarat Co-operative Societies Act and the Gujarat Co-operative Societies Rules restricting the rights of the citizens to form a voluntary association and get it registered under the Co-operative Societies Act confining its membership to a particular set of people recognized by their profession, their sex, their work or the position they hold or with reference to their beliefs, either religious or otherwise. It is not contended that there is any provision in the Gujarat Co-operative Societies Act prohibiting the registration of such a co-operative society. We have already referred to the history of the legislation and the concept of confinement of membership based on residence, belief or community. The concept of open membership, as envisaged by Section 24 of the Act is not absolute on the very wording of that Section. The availability of membership is subject to the qualification prescribed under the provisions of the Act, the Rules and the bye-laws of such society. In other words, if the relevant bye-law of society places any restriction on a person getting admitted to a co-operative society, that bye-law would be operative against him and no person, or aspiring member, can be heard to say that he will not be bound by that law which prescribes a qualification for his membership.31. In our view, the High Court made a wrong approach to the question of whether a bye-law like bye-law No. 7 could be ignored by a member and whether the Authorities under the Act and the court could ignore the same on the basis that it is opposed to public policy being against the constitutional scheme of equality or non-discrimination relating to employment, vocation and such. So long as the approved bye-law stands and the Act does not provide for invalidity of such a bye-law or for interdicting the formation of co-operative societies confined to persons of a particular vocation, a particular community, a particular persuasion or a particular sex, it could not be held that the formation of such a society under the Act would be opposed to public policy and consequently liable to be declared void or the society directed to amend its basic bye-law relating to qualification for membership.Another ground relied on by the Authorities under the Act and the High Court to direct the acceptance of respondent No.3 as a member in the Society is that the bye-law confining membership to a person belonging to the Parsi community and the insistence on respondent No.2 selling the building or the flats therein only to members of the Parsi community who alone are qualified to be members of the Society, would amount to an absolute restraint on alienation within the meaning of Section 10 of Transfer of Property Act. Section 10 of the Transfer of Property Act cannot have any application to transfer of membership. Transfer of membership is regulated by the bye-laws. The bye-laws in that regard are not in challenge and cannot effectively be challenged in view of what was have held above. Section 30 of the Act itself places restriction in that regard. There is no plea of invalidity attached to that provision. Hence, the restriction in that regard cannot be invalidated or ignored by reference to Section 10 of the Transfer of Property Act.
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Hans Raj Vs. Rattan Chand, Etc | 1941 Mad 75 , the expression "proceedings under S. 4" had been used while in Heerabai v. Official Receiver, Krishna, AIR 1963 Andh Pra 296, the petitioner before the High Court, mother of the two insolvents, laid a claim to 1/3rd share in the properties which the Official Receiver sold on 16th April 1960 purporting to be those of the insolvents. According to the judgment "the petitioner filed I. A. No. 1900 of 1960 on 28th June 1960 purporting to be under Ss. 4 and 68 of the Provincial Insolvency Act." She also filed T. A. No. 1899 of 1960 for condoning the delay in filing this application as ordinarily "the appeal under S. 68 should have been filed by her on or before 5th July 1960". The insolvency Court held in the proceedings under S. 68 that there could be no condonation of delay but failed to ascertain with reference to the nature of I. A. No. 1900 of 1960 whether it fell under S. 4 of the Provincial Insolvency Act. The learned Judge found that the petitioner had not made any claim before the Official Receiver and even if she chose to make any such claim the Official Receiver had no power whatever to decide upon such claim petitions. It was observed:"Therefore, an application such as I. A. No. 1900 of 1960 cannot be taken in any sense to be an appeal against the act of the Official Receiver as such. On the other hand, when the petitioner herein wanted that her share should be untouched, it is certainly a case where the petitioner approached the Court to determine the question of her title which it is competent to do only under S. 4 of the Provincial Insolvency Act. Therefore, in my view, it is idle to contend that I. A. No. 1900 falls within the purview of S. 68, and that it should be taken to be an appeal and not an application which is contemplated and competent under S. 4 of the Provincial Insolvency Act." It is difficult to accept the soundness of some of the dicta in the above judgment. The Official Receivers act in selling the property on 16th April 1960 may have been wholly wrong? but if the petitioner wanted the same to be set aside, she could either have made an application under S. 68 to the Court or she could have filed a suit for relief under the ordinary law of the land. She could not, after a period of 21 days, start a proceeding in the insolvency Court describing it as one under S. 4 so as to get out of the bar of limitation imposed by S. 68. She need not have waited till the sale of property. She might have applied to the Court as soon as the receiver took the first step by attaching the property. 15. In our opinion, Jai Lal, J. correctly pointed out the correlation between Ss. 4 and 68 in Daulat Ram v. Bansilal, AIR 1937 Lah 2. The appellant had a money decree against the insolvents which he executed by attachment of a moiety of a share in a house which he alleged belonged to the judgment-debtors. This was before the order of adjudication. An objection was raised by the respondent, Bansilal that he was a purchaser for consideration of the attached property. The objection having been allowed, a suit was filed under O. 21, R. 63, C. P. C. by the attaching decree-holder and ultimately decreed, it having been held that the sale by the judgment-debtors was fraudulent as against the creditors. The receivers in insolvency then took possession of the property attached by the appellant and sold the same in the insolvency proceedings. Bansilal thereupon made an application under S. 63 on the ground that the action of the receivers was illegal. The District Judge allowed the application holding that the decree passed in the suit under O. 21, R. 63 was operative only so far as the execution proceedings were concerned and that it did not enure for the benefit of the other creditors. He, therefore, set aside the sale by the receivers. The creditors including the appellant came up in appeal from the order of the District Judge. An objection was raised by the respondents that no appeal lay without the leave either of the District Judge or of the High Court. In disposing of this, Jai Lal, J. observed:"I am inclined to think that though the District Judge was moved under S. 68 which is not one of the sections mentioned in Sch. 1, the investigation, which he is expected to make in a case like the present, should be under S. 4, Provincial Insolvency Act, and any order passed by him under S. 4 is appealable as of right to this Court." An observation similar to the above was made by the same learned Judge in Mul Raj v. Official Receiver, AIR 1937 Lah 297. This point was also brought out in Ganda Ram v. Shiv Nand Ganesh Das, AIR 1937 Lah 757. The scope of the two sections was brought out even more clearly in a judgment of the Rangoon High Court in Ma Sein v. U Mg. Mg., AIR 1934 Rang 97, where it was said:"Now, S. 4 defines the powers of the Insolvency Court to decide questions of law and fact arising in insolvency proceedings, but it does not lay down how the Court is to be moved to exercise those powers.......Of course, the powers of the Court in deciding such an application are defined in S. 4 but this does not mean that the application itself is made under S. 4, and clearly it cannot be for S. 4 contains no provision as to how the Court is, to be moved to exercise its powers, and for the mode of invoking the authority of the Court other provisions of the Act, such as Ss. 53, 54 and 68, have to be consulted." | 0[ds]5. It will be noted from the above that S. 4. sub-s. (1) lays down the ambit of the powers of the court exercising insolvency jurisdiction. Its primary object is to empower such courts to decide all questions whether of title or priority or of any nature whatsoever and whether involving matters of law or fact which may arise in any case of insolvency coming within the cognizance of the court. In other words, the aim of this provision is that all questions of title or priority arising in insolvency should primarily be disposed of by the insolvency courts so as to achieve expedition. It will be noted at once that resort to ordinary courts of law is not proscribed and at the same time the legislature provided that a person could resort to the insolvency court if the matter arose in insolvency proceedings. Under sub s. (2) however every such decision arrived at by the insolvency court was to be final and binding for all purposes as between on the one hand, the debtor and the debtors estate and, on the other hand, all claimants against him or it and all persons claiming through or under them or any of them. This provision is however subject to the other provisions of the Act and notwithstanding anything contained in any other law for the time being in force.It is also to be noted that this section does not lay down what procedure or what steps should be taken by any person who is aggrieved by any order of the insolvency court or of any act of omission or commission of the receiver7. Leaving aside the decisions which were cited at the Bar, it appears to us, on a plain reading of the sections mentioned above and in particular, Ss. 4 and 68, that there can be no doubt that a person (like the appellant before us) complaining of the receiver taking possession of or attaching property in which the insolvent has no interest, must apply for relief within 21 days of the wrongful act of the receiver. He cannot be heard to say that his application is not under S. 68 but under S. 4 and thus seek to avoid the short period of limitation prescribed under S. 68.Moreover, sub-s. (1) and sub-s. (2) of S. 4 both start with the phrase "subject to the provisions of this Act" and even if it was possible to construe that S. 4 envisaged the making of an application for relief, such application would be subject to S. 68 of the Act11. These decisions, in our opinion, do not assist the appellant on whose behalf it was argued that an application might be made either under S. 68 or under S. 4 of the Act. It is clear from the above decisions that a person complaining of the act of the receiver may either apply under S. 68 or proceed under the ordinary law of the land. Section 4 does not prescribe any application for relief under that section. Its object is to define the limits of jurisdiction of the Courts exercising powers in insolvency. It is not correct to say that a person aggrieved by an act of the receiver has the choice of making an applications under S. 4 or under S. 68. Section 4 comes into operation whenever any question of the nature mentioned therein is sought to be canvassed before a Court exercising insolvency jurisdiction. Such questions may arise because of acts or decisions of the receiver complained of. A question as to whether an insolvent has any Interest in the property attached by the receiver would fall within the purview of S. 4, but the application for the adjudication of such a question when the receiver acts otherwise than under the order of a Court would be covered by S. 68 and as such the period of limitation of twenty-one days would be attracted to any such applicationThe last portion of the above paragraph was quoted as supporting the proposition that an application lay under S. 4 of the Act. That is not what the learned Judges of the Madras High Court meant. In our view, what was meant was that the claimant might make an application to the District Judge who would under S. 4 of the Act have jurisdiction to pass a proper order thereonIt is difficult to accept the soundness of some of the dicta in the above judgment. The Official Receivers act in selling the property on 16th April 1960 may have been wholly wrong? but if the petitioner wanted the same to be set aside, she could either have made an application under S. 68 to the Court or she could have filed a suit for relief under the ordinary law of the land. She could not, after a period of 21 days, start a proceeding in the insolvency Court describing it as one under S. 4 so as to get out of the bar of limitation imposed by S. 68. She need not have waited till the sale of property. She might have applied to the Court as soon as the receiver took the first step by attaching the property15. In our opinion, Jai Lal, J. correctly pointed out the correlation between Ss. 4 and 68 in Daulat Ram v. Bansilal, AIR 1937 Lah 2The appellant had a money decree against the insolvents which he executed by attachment of a moiety of a share in a house which he alleged belonged to the. This was before the order of adjudication. An objection was raised by the respondent, Bansilal that he was a purchaser for consideration of the attached property. The objection having been allowed, a suit was filed under O. 21, R. 63, C. P. C. by the attachingr and ultimately decreed, it having been held that the sale by thes was fraudulent as against the creditors. The receivers in insolvency then took possession of the property attached by the appellant and sold the same in the insolvency proceedings. Bansilal thereupon made an application under S. 63 on the ground that the action of the receivers was illegal. The District Judge allowed the application holding that the decree passed in the suit under O. 21, R. 63 was operative only so far as the execution proceedings were concerned and that it did not enure for the benefit of the other creditors. He, therefore, set aside the sale by the receivers. The creditors including the appellant came up in appeal from the order of the District Judge. An objection was raised by the respondents that no appeal lay without the leave either of the District Judge or of the High Court. In disposing of this, Jai Lal, J. observed"I am inclined to think that though the District Judge was moved under S. 68 which is not one of the sections mentioned in Sch. 1, the investigation, which he is expected to make in a case like the present, should be under S. 4, Provincial Insolvency Act, and any order passed by him under S. 4 is appealable as of right to this Court."An observation similar to the above was made by the same learned Judge in Mul Raj v. Official Receiver, AIR 1937 Lah 297. This point was also brought out in Ganda Ram v. Shiv Nand Ganesh Das, AIR 1937 Lah 757. The scope of the two sections was brought out even more clearly in a judgment of the Rangoon High Court in Ma Sein v. U Mg. Mg., AIR 1934 Rang 97, where it was said:"Now, S. 4 defines the powers of the Insolvency Court to decide questions of law and fact arising in insolvency proceedings, but it does not lay down how the Court is to be moved to exercise those powers.......Of course, the powers of the Court in deciding such an application are defined in S. 4 but this does not mean that the application itself is made under S. 4, and clearly it cannot be for S. 4 contains no provision as to how the Court is, to be moved to exercise its powers, and for the mode of invoking the authority of the Court other provisions of the Act, such as Ss. 53, 54 and 68, have to be consulted." | 0 | 5,409 | 1,505 | ### 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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1941 Mad 75 , the expression "proceedings under S. 4" had been used while in Heerabai v. Official Receiver, Krishna, AIR 1963 Andh Pra 296, the petitioner before the High Court, mother of the two insolvents, laid a claim to 1/3rd share in the properties which the Official Receiver sold on 16th April 1960 purporting to be those of the insolvents. According to the judgment "the petitioner filed I. A. No. 1900 of 1960 on 28th June 1960 purporting to be under Ss. 4 and 68 of the Provincial Insolvency Act." She also filed T. A. No. 1899 of 1960 for condoning the delay in filing this application as ordinarily "the appeal under S. 68 should have been filed by her on or before 5th July 1960". The insolvency Court held in the proceedings under S. 68 that there could be no condonation of delay but failed to ascertain with reference to the nature of I. A. No. 1900 of 1960 whether it fell under S. 4 of the Provincial Insolvency Act. The learned Judge found that the petitioner had not made any claim before the Official Receiver and even if she chose to make any such claim the Official Receiver had no power whatever to decide upon such claim petitions. It was observed:"Therefore, an application such as I. A. No. 1900 of 1960 cannot be taken in any sense to be an appeal against the act of the Official Receiver as such. On the other hand, when the petitioner herein wanted that her share should be untouched, it is certainly a case where the petitioner approached the Court to determine the question of her title which it is competent to do only under S. 4 of the Provincial Insolvency Act. Therefore, in my view, it is idle to contend that I. A. No. 1900 falls within the purview of S. 68, and that it should be taken to be an appeal and not an application which is contemplated and competent under S. 4 of the Provincial Insolvency Act." It is difficult to accept the soundness of some of the dicta in the above judgment. The Official Receivers act in selling the property on 16th April 1960 may have been wholly wrong? but if the petitioner wanted the same to be set aside, she could either have made an application under S. 68 to the Court or she could have filed a suit for relief under the ordinary law of the land. She could not, after a period of 21 days, start a proceeding in the insolvency Court describing it as one under S. 4 so as to get out of the bar of limitation imposed by S. 68. She need not have waited till the sale of property. She might have applied to the Court as soon as the receiver took the first step by attaching the property. 15. In our opinion, Jai Lal, J. correctly pointed out the correlation between Ss. 4 and 68 in Daulat Ram v. Bansilal, AIR 1937 Lah 2. The appellant had a money decree against the insolvents which he executed by attachment of a moiety of a share in a house which he alleged belonged to the judgment-debtors. This was before the order of adjudication. An objection was raised by the respondent, Bansilal that he was a purchaser for consideration of the attached property. The objection having been allowed, a suit was filed under O. 21, R. 63, C. P. C. by the attaching decree-holder and ultimately decreed, it having been held that the sale by the judgment-debtors was fraudulent as against the creditors. The receivers in insolvency then took possession of the property attached by the appellant and sold the same in the insolvency proceedings. Bansilal thereupon made an application under S. 63 on the ground that the action of the receivers was illegal. The District Judge allowed the application holding that the decree passed in the suit under O. 21, R. 63 was operative only so far as the execution proceedings were concerned and that it did not enure for the benefit of the other creditors. He, therefore, set aside the sale by the receivers. The creditors including the appellant came up in appeal from the order of the District Judge. An objection was raised by the respondents that no appeal lay without the leave either of the District Judge or of the High Court. In disposing of this, Jai Lal, J. observed:"I am inclined to think that though the District Judge was moved under S. 68 which is not one of the sections mentioned in Sch. 1, the investigation, which he is expected to make in a case like the present, should be under S. 4, Provincial Insolvency Act, and any order passed by him under S. 4 is appealable as of right to this Court." An observation similar to the above was made by the same learned Judge in Mul Raj v. Official Receiver, AIR 1937 Lah 297. This point was also brought out in Ganda Ram v. Shiv Nand Ganesh Das, AIR 1937 Lah 757. The scope of the two sections was brought out even more clearly in a judgment of the Rangoon High Court in Ma Sein v. U Mg. Mg., AIR 1934 Rang 97, where it was said:"Now, S. 4 defines the powers of the Insolvency Court to decide questions of law and fact arising in insolvency proceedings, but it does not lay down how the Court is to be moved to exercise those powers.......Of course, the powers of the Court in deciding such an application are defined in S. 4 but this does not mean that the application itself is made under S. 4, and clearly it cannot be for S. 4 contains no provision as to how the Court is, to be moved to exercise its powers, and for the mode of invoking the authority of the Court other provisions of the Act, such as Ss. 53, 54 and 68, have to be consulted."
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(2) of S. 4 both start with the phrase "subject to the provisions of this Act" and even if it was possible to construe that S. 4 envisaged the making of an application for relief, such application would be subject to S. 68 of the Act11. These decisions, in our opinion, do not assist the appellant on whose behalf it was argued that an application might be made either under S. 68 or under S. 4 of the Act. It is clear from the above decisions that a person complaining of the act of the receiver may either apply under S. 68 or proceed under the ordinary law of the land. Section 4 does not prescribe any application for relief under that section. Its object is to define the limits of jurisdiction of the Courts exercising powers in insolvency. It is not correct to say that a person aggrieved by an act of the receiver has the choice of making an applications under S. 4 or under S. 68. Section 4 comes into operation whenever any question of the nature mentioned therein is sought to be canvassed before a Court exercising insolvency jurisdiction. Such questions may arise because of acts or decisions of the receiver complained of. A question as to whether an insolvent has any Interest in the property attached by the receiver would fall within the purview of S. 4, but the application for the adjudication of such a question when the receiver acts otherwise than under the order of a Court would be covered by S. 68 and as such the period of limitation of twenty-one days would be attracted to any such applicationThe last portion of the above paragraph was quoted as supporting the proposition that an application lay under S. 4 of the Act. That is not what the learned Judges of the Madras High Court meant. In our view, what was meant was that the claimant might make an application to the District Judge who would under S. 4 of the Act have jurisdiction to pass a proper order thereonIt is difficult to accept the soundness of some of the dicta in the above judgment. The Official Receivers act in selling the property on 16th April 1960 may have been wholly wrong? but if the petitioner wanted the same to be set aside, she could either have made an application under S. 68 to the Court or she could have filed a suit for relief under the ordinary law of the land. She could not, after a period of 21 days, start a proceeding in the insolvency Court describing it as one under S. 4 so as to get out of the bar of limitation imposed by S. 68. She need not have waited till the sale of property. She might have applied to the Court as soon as the receiver took the first step by attaching the property15. In our opinion, Jai Lal, J. correctly pointed out the correlation between Ss. 4 and 68 in Daulat Ram v. Bansilal, AIR 1937 Lah 2The appellant had a money decree against the insolvents which he executed by attachment of a moiety of a share in a house which he alleged belonged to the. This was before the order of adjudication. An objection was raised by the respondent, Bansilal that he was a purchaser for consideration of the attached property. The objection having been allowed, a suit was filed under O. 21, R. 63, C. P. C. by the attachingr and ultimately decreed, it having been held that the sale by thes was fraudulent as against the creditors. The receivers in insolvency then took possession of the property attached by the appellant and sold the same in the insolvency proceedings. Bansilal thereupon made an application under S. 63 on the ground that the action of the receivers was illegal. The District Judge allowed the application holding that the decree passed in the suit under O. 21, R. 63 was operative only so far as the execution proceedings were concerned and that it did not enure for the benefit of the other creditors. He, therefore, set aside the sale by the receivers. The creditors including the appellant came up in appeal from the order of the District Judge. An objection was raised by the respondents that no appeal lay without the leave either of the District Judge or of the High Court. In disposing of this, Jai Lal, J. observed"I am inclined to think that though the District Judge was moved under S. 68 which is not one of the sections mentioned in Sch. 1, the investigation, which he is expected to make in a case like the present, should be under S. 4, Provincial Insolvency Act, and any order passed by him under S. 4 is appealable as of right to this Court."An observation similar to the above was made by the same learned Judge in Mul Raj v. Official Receiver, AIR 1937 Lah 297. This point was also brought out in Ganda Ram v. Shiv Nand Ganesh Das, AIR 1937 Lah 757. The scope of the two sections was brought out even more clearly in a judgment of the Rangoon High Court in Ma Sein v. U Mg. Mg., AIR 1934 Rang 97, where it was said:"Now, S. 4 defines the powers of the Insolvency Court to decide questions of law and fact arising in insolvency proceedings, but it does not lay down how the Court is to be moved to exercise those powers.......Of course, the powers of the Court in deciding such an application are defined in S. 4 but this does not mean that the application itself is made under S. 4, and clearly it cannot be for S. 4 contains no provision as to how the Court is, to be moved to exercise its powers, and for the mode of invoking the authority of the Court other provisions of the Act, such as Ss. 53, 54 and 68, have to be consulted."
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State of Bombay Vs. Bhanji Munji & Another | informers by giving them the vacancies they were instrumental in discovering. This, it was hoped, would show landlords and tenants that suppression did not pay and so they might as well obey the law, and that in turn, would enable Government to benefit the only privileged class of persons it had any real intention of benefiting, namely its own officers and servants. This conclusion is strengthened by the fact that when the decision about suppressed vacancies and first informers was made in 1947, and again when the Bombay Land Requisition Act was passed in 1948, there was no. need for a public purpose. So runs the argument16. Another argument was that in the affidavit in reply the State of Bombay says that the purpose of the legislation was to effect an equitable distribution."The policy of the Government was that having regard to the fact that but for such intimation a vacancy would not have come to light at all, it was fair and just and conducive to an equitable distribution of accommodation that the premises should be allotted to the first informant provided he genuinely needs accommodation."It was contended, and the contention prevailed in the High Court, that a decision to set apart a section of the much needed vacancies for the use of spies and informers as a reward for their services, whether their need was as great as that of other houseless persons or not, was not equitable, and as the purpose of the legislation was said to be the equitable distribution of vacant accommodation this fell outside its scope.17. In our opinion, this is not a proper approach to the problem. The Constitution authorises requisitions for a public purpose. The purpose here is finding accommodation for the homeless. If therefore a vacancy is allotted to a person who is in fact houseless, the purpose is fulfilled. It might be possible to attack a given allotment on other grounds, such as fraud, invidious discrimination, nepotism, bribery or corruption, but none of that is alleged here. All that is said is that there was no. public purpose.18. A wide discretion must be left to Government to carry out the policy of the Act. If the number of vacancies is small and the number of the homeless large, it is evident that there must be some picking and choosing. So long as this is done on broad lines of principle and reasonably, the Courts cannot interfere simply because other methods are also possible, even if the Courts think they are better, for in the end Government must be left to determine which of many possible schemes is the best. Government had to weigh many conflicting factors : the urgency of the situation, the need of reasonable dispatch, the expenditure of public funds which would be inevitable on long and protracted enquiries about the private affairs of thousands of applicants for accommodation, the maintenance of public morale by ensuring that the honest landlord who did his duty did not suffer as against the dishonest person who suppressed his vacancies and m ade large and illicit profits under his "puggree"; and in addition the equitable maxim that "equity helps the vigilant". We hold that neithar the order of requisition nor the order of allotment in Civil Appeals Nos. 145 and 146 of 1952 is ultra vires.19. In Civil Appeal No. 146 of 1951 a further question arises. Under the Act only premises (to which a special meanings is given, within the meaning of Section 4 (3) can be requisitioned. It was urged that the premises in this case were not premises within the meaning of that definition, so it was said they could not be requisitioned. The question turns on whether the premises were "let" or "intended to be let". The learned trial Judge threw the burden of proof on the State Government and told its learned counsel that he should proceed to prove this fact if he so desired. He replied that he did not intend to lead any evidence.It was explained to us that Government took up this attitude as it wanted a decision about where the burden lay as the question arises continually and cannot be decided when both parties adduce evidence. The learned Attorney General gave an assurance that the possession of the petitioners in this case would not be disturbed; all he wanted was a decision on the point. In the absence of any counter evidence the learned trial Judge accepted the facts proved by the petitioners affidavit and decided the matter in their favour.20. On appeal the learned Chief Justice of the Bombay High Court and Bhagwati, J. upheld the view of the learned trial Judge Tendolkar, J. In our opinion, the burdan was wrongly placed. The petitioners came to Court with the allegation that Government had passed an illegal order against them. On the face of it, the order is not illegal. Government has authority under the law to make such orders, and prima facie the order complies with the provisions of the statute. It was therefore the duty of the petitioners to show that the order was illegal. This is particularly so here as the question whether the petitioners has let or had intended to let the building or a part of it was a matter on which they had special means of knowledge. However, in view of the learned Attorney-Generals assurance there is no. need to go into this matter any further. This appeal will accordingly be dismissed because of the assurance given and here will be no. order about costs thought.21. In Civil Appeal No. 147 of 1952, the order of requisition was under Section 5(1) but the same questions arise. As in the other two cases, no. public purpose is mentioned and, as before, a second order setting out the purpose, housing a person without accommodation, was made in August 1951. For the reasons already given, we hold that there was a public purpose and that the orders here were valid. | 1[ds]6. In our opinion, Article 19(1) (f) does not apply to them.of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92 (A) andDwarkadas Shrinivas of Bombay v. Sholapur Spinning and Weaving Co. Ltd., AIR 1954 SC l19 (B), the majority of the Judges were agreed that Articles 19(1)(f) and 31 deal with different subjects and cover different fields. There was some disagreement about the nature and scope of the difference but all were agreed that there was no. overlapping. We need not examine those differences here because it is enough to say that Article 19(1)(f) read with Clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by Clause (5) could not be brought into play. If there is no. property which can be acquired held or disposed of, no. restriction can be placed on the exercise of the right to acquire, hold and dispose of it, and as Clause (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the Article postulates the existence of property over which these rights can be exercised.Inthe present case, the right to occupy the premises has gone as also the right to transfer, assign, let orWhat is left is but the mere husk of title in the leasehold interest : a forlorn hope that the force of this law will somehow expend itself before the lease runspresent Chief Justice (mahajan, J. as he then was) pointed out inState of Bihar v. Kameshwar Singh, AIR 1952 SC 252 at p. 274 (D), that"It is unnecessary to state in express terms in the statute itself the precise purpose for, which property is being taken, provided from the whole tenor and intendment of the Act it could be gathered that the property was being acquired either for purposes of the State or for purposes of the public and that the intention was to benefit the community at large".Following that decision we hold that the Act is not invalid for this reason.In our opinion, it is not necessary to set out the purpose of the requisition in the order. The desirability of such a course is obvious because when it is not done proof of the purpose must be given in other ways and that exposes the authorities to the kind of charges we find here and to the danger that the Courts will consider them well founded. But in itself an omission to set out the purpose in the order is not fatal so long as the facts are established to the satisfaction of the Court in some other way. The underlying principle of our decision inBiswabhusan Naik v. State of Orissa, AIR 1954 SC 359 (E), applieswas contended, and the contention prevailed in the High Court, that a decision to set apart a section of the much needed vacancies for the use of spies and informers as a reward for their services, whether their need was as great as that of other houseless persons or not, was not equitable, and as the purpose of the legislation was said to be the equitable distribution of vacant accommodation this fell outside its scope.17. In our opinion, this is not a proper approach to the problem. The Constitution authorises requisitions for a public purpose. The purpose here is finding accommodation for the homeless. If therefore a vacancy is allotted to a person who is in fact houseless, the purpose is fulfilled. It might be possible to attack a given allotment on other grounds, such as fraud, invidious discrimination, nepotism, bribery or corruption, but none of that is alleged here. All that is said is that there was no. public purpose.18. A wide discretion must be left to Government to carry out the policy of the Act. If the number of vacancies is small and the number of the homeless large, it is evident that there must be some picking and choosing. So long as this is done on broad lines of principle and reasonably, the Courts cannot interfere simply because other methods are also possible, even if the Courts think they are better, for in the end Government must be left to determine which of many possible schemes is the best. Government had to weigh many conflicting factors : the urgency of the situation, the need of reasonable dispatch, the expenditure of public funds which would be inevitable on long and protracted enquiries about the private affairs of thousands of applicants for accommodation, the maintenance of public morale by ensuring that the honest landlord who did his duty did not suffer as against the dishonest person who suppressed his vacancies and m ade large and illicit profits under his "puggree"; and in addition the equitable maxim that "equity helps the vigilant". We hold that neithar the order of requisition nor the order of allotment in Civil Appeals Nos. 145 and 146 of 1952 is ultra vires.On appeal the learned Chief Justice of the Bombay High Court and Bhagwati, J. upheld the view of the learned trial Judge Tendolkar, J. In our opinion, the burdan was wrongly placed. The petitioners came to Court with the allegation that Government had passed an illegal order against them. On the face of it, the order is not illegal. Government has authority under the law to make such orders, and prima facie the order complies with the provisions of the statute. It was therefore the duty of the petitioners to show that the order was illegal. This is particularly so here as the question whether the petitioners has let or had intended to let the building or a part of it was a matter on which they had special means of knowledge. However, in view of the learnedassurance there is no. need to go into this matter any further. This appeal will accordingly be dismissed because of the assurance given and here will be no. order about costs thought.21. In Civil Appeal No. 147 of 1952, the order of requisition was under Section 5(1) but the same questions arise. As in the other two cases, no. public purpose is mentioned and, as before, a second order setting out the purpose, housing a person without accommodation, was made in August 1951. For the reasons already given, we hold that there was a public purpose and that the orders here were valid. | 1 | 3,431 | 1,208 | ### 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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informers by giving them the vacancies they were instrumental in discovering. This, it was hoped, would show landlords and tenants that suppression did not pay and so they might as well obey the law, and that in turn, would enable Government to benefit the only privileged class of persons it had any real intention of benefiting, namely its own officers and servants. This conclusion is strengthened by the fact that when the decision about suppressed vacancies and first informers was made in 1947, and again when the Bombay Land Requisition Act was passed in 1948, there was no. need for a public purpose. So runs the argument16. Another argument was that in the affidavit in reply the State of Bombay says that the purpose of the legislation was to effect an equitable distribution."The policy of the Government was that having regard to the fact that but for such intimation a vacancy would not have come to light at all, it was fair and just and conducive to an equitable distribution of accommodation that the premises should be allotted to the first informant provided he genuinely needs accommodation."It was contended, and the contention prevailed in the High Court, that a decision to set apart a section of the much needed vacancies for the use of spies and informers as a reward for their services, whether their need was as great as that of other houseless persons or not, was not equitable, and as the purpose of the legislation was said to be the equitable distribution of vacant accommodation this fell outside its scope.17. In our opinion, this is not a proper approach to the problem. The Constitution authorises requisitions for a public purpose. The purpose here is finding accommodation for the homeless. If therefore a vacancy is allotted to a person who is in fact houseless, the purpose is fulfilled. It might be possible to attack a given allotment on other grounds, such as fraud, invidious discrimination, nepotism, bribery or corruption, but none of that is alleged here. All that is said is that there was no. public purpose.18. A wide discretion must be left to Government to carry out the policy of the Act. If the number of vacancies is small and the number of the homeless large, it is evident that there must be some picking and choosing. So long as this is done on broad lines of principle and reasonably, the Courts cannot interfere simply because other methods are also possible, even if the Courts think they are better, for in the end Government must be left to determine which of many possible schemes is the best. Government had to weigh many conflicting factors : the urgency of the situation, the need of reasonable dispatch, the expenditure of public funds which would be inevitable on long and protracted enquiries about the private affairs of thousands of applicants for accommodation, the maintenance of public morale by ensuring that the honest landlord who did his duty did not suffer as against the dishonest person who suppressed his vacancies and m ade large and illicit profits under his "puggree"; and in addition the equitable maxim that "equity helps the vigilant". We hold that neithar the order of requisition nor the order of allotment in Civil Appeals Nos. 145 and 146 of 1952 is ultra vires.19. In Civil Appeal No. 146 of 1951 a further question arises. Under the Act only premises (to which a special meanings is given, within the meaning of Section 4 (3) can be requisitioned. It was urged that the premises in this case were not premises within the meaning of that definition, so it was said they could not be requisitioned. The question turns on whether the premises were "let" or "intended to be let". The learned trial Judge threw the burden of proof on the State Government and told its learned counsel that he should proceed to prove this fact if he so desired. He replied that he did not intend to lead any evidence.It was explained to us that Government took up this attitude as it wanted a decision about where the burden lay as the question arises continually and cannot be decided when both parties adduce evidence. The learned Attorney General gave an assurance that the possession of the petitioners in this case would not be disturbed; all he wanted was a decision on the point. In the absence of any counter evidence the learned trial Judge accepted the facts proved by the petitioners affidavit and decided the matter in their favour.20. On appeal the learned Chief Justice of the Bombay High Court and Bhagwati, J. upheld the view of the learned trial Judge Tendolkar, J. In our opinion, the burdan was wrongly placed. The petitioners came to Court with the allegation that Government had passed an illegal order against them. On the face of it, the order is not illegal. Government has authority under the law to make such orders, and prima facie the order complies with the provisions of the statute. It was therefore the duty of the petitioners to show that the order was illegal. This is particularly so here as the question whether the petitioners has let or had intended to let the building or a part of it was a matter on which they had special means of knowledge. However, in view of the learned Attorney-Generals assurance there is no. need to go into this matter any further. This appeal will accordingly be dismissed because of the assurance given and here will be no. order about costs thought.21. In Civil Appeal No. 147 of 1952, the order of requisition was under Section 5(1) but the same questions arise. As in the other two cases, no. public purpose is mentioned and, as before, a second order setting out the purpose, housing a person without accommodation, was made in August 1951. For the reasons already given, we hold that there was a public purpose and that the orders here were valid.
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but all were agreed that there was no. overlapping. We need not examine those differences here because it is enough to say that Article 19(1)(f) read with Clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by Clause (5) could not be brought into play. If there is no. property which can be acquired held or disposed of, no. restriction can be placed on the exercise of the right to acquire, hold and dispose of it, and as Clause (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the Article postulates the existence of property over which these rights can be exercised.Inthe present case, the right to occupy the premises has gone as also the right to transfer, assign, let orWhat is left is but the mere husk of title in the leasehold interest : a forlorn hope that the force of this law will somehow expend itself before the lease runspresent Chief Justice (mahajan, J. as he then was) pointed out inState of Bihar v. Kameshwar Singh, AIR 1952 SC 252 at p. 274 (D), that"It is unnecessary to state in express terms in the statute itself the precise purpose for, which property is being taken, provided from the whole tenor and intendment of the Act it could be gathered that the property was being acquired either for purposes of the State or for purposes of the public and that the intention was to benefit the community at large".Following that decision we hold that the Act is not invalid for this reason.In our opinion, it is not necessary to set out the purpose of the requisition in the order. The desirability of such a course is obvious because when it is not done proof of the purpose must be given in other ways and that exposes the authorities to the kind of charges we find here and to the danger that the Courts will consider them well founded. But in itself an omission to set out the purpose in the order is not fatal so long as the facts are established to the satisfaction of the Court in some other way. The underlying principle of our decision inBiswabhusan Naik v. State of Orissa, AIR 1954 SC 359 (E), applieswas contended, and the contention prevailed in the High Court, that a decision to set apart a section of the much needed vacancies for the use of spies and informers as a reward for their services, whether their need was as great as that of other houseless persons or not, was not equitable, and as the purpose of the legislation was said to be the equitable distribution of vacant accommodation this fell outside its scope.17. In our opinion, this is not a proper approach to the problem. The Constitution authorises requisitions for a public purpose. The purpose here is finding accommodation for the homeless. If therefore a vacancy is allotted to a person who is in fact houseless, the purpose is fulfilled. It might be possible to attack a given allotment on other grounds, such as fraud, invidious discrimination, nepotism, bribery or corruption, but none of that is alleged here. All that is said is that there was no. public purpose.18. A wide discretion must be left to Government to carry out the policy of the Act. If the number of vacancies is small and the number of the homeless large, it is evident that there must be some picking and choosing. So long as this is done on broad lines of principle and reasonably, the Courts cannot interfere simply because other methods are also possible, even if the Courts think they are better, for in the end Government must be left to determine which of many possible schemes is the best. Government had to weigh many conflicting factors : the urgency of the situation, the need of reasonable dispatch, the expenditure of public funds which would be inevitable on long and protracted enquiries about the private affairs of thousands of applicants for accommodation, the maintenance of public morale by ensuring that the honest landlord who did his duty did not suffer as against the dishonest person who suppressed his vacancies and m ade large and illicit profits under his "puggree"; and in addition the equitable maxim that "equity helps the vigilant". We hold that neithar the order of requisition nor the order of allotment in Civil Appeals Nos. 145 and 146 of 1952 is ultra vires.On appeal the learned Chief Justice of the Bombay High Court and Bhagwati, J. upheld the view of the learned trial Judge Tendolkar, J. In our opinion, the burdan was wrongly placed. The petitioners came to Court with the allegation that Government had passed an illegal order against them. On the face of it, the order is not illegal. Government has authority under the law to make such orders, and prima facie the order complies with the provisions of the statute. It was therefore the duty of the petitioners to show that the order was illegal. This is particularly so here as the question whether the petitioners has let or had intended to let the building or a part of it was a matter on which they had special means of knowledge. However, in view of the learnedassurance there is no. need to go into this matter any further. This appeal will accordingly be dismissed because of the assurance given and here will be no. order about costs thought.21. In Civil Appeal No. 147 of 1952, the order of requisition was under Section 5(1) but the same questions arise. As in the other two cases, no. public purpose is mentioned and, as before, a second order setting out the purpose, housing a person without accommodation, was made in August 1951. For the reasons already given, we hold that there was a public purpose and that the orders here were valid.
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Union Of India Vs. Major General Shri Kant Sharma | be unnecessary for the aggrieved party to approach this Court for a leave to file such an appeal. An appeal by certificate would then be maintainable as a matter of right in view of Section 30 which uses the expression “an appeal shall lie to the Supreme Court”. That appears to us to be the true legal position on a plain reading of the provisions of Sections 30 and 31.” Thus, we find that though under Section 30 no person has a right of appeal against the final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act, but it is statutory appeal which lies to this Court. 34. The aforesaid decisions rendered by this Court can be summarised as follows: (i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra and S.N. Mukherjee).(ii)The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.(Refer: Mafatlal Industries Ltd.).(iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma).(iv)The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma). 35. Article 141 of the Constitution of India reads as follows: “Article 141.Law declared by Supreme Court to be binding on all courts.-The law declared by the Supreme Court shall be binding on all courts within the territory of India.” 36. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited(SOUTHCO) this Court observed that it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case. In Chhabil Dass Agrawal this Court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. In Cicily Kallarackal this Court issued a direction of caution that it will not be a proper exercise of the jurisdiction by the High Court to entertain a writ petition against such orders against which statutory appeal lies before this Court. In view of Article 141(1) the law as laid down by this Court, as referred above, is binding on all courts of India including the High Courts. 37. Likelihood of anomalous situation If the High Court entertains a petition under Article 226 of the Constitution of India against order passed by Armed Forces Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e. Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from this Court. Section 30 provides for an appeal to this Court subject to leave granted under Section 31 of the Act. By clause (2) of Article 136 of the Constitution of India, the appellate jurisdiction of this Court under Article 136 has been excluded in relation to any judgment, determination, sentence or order passed or made by any court or Tribunal constituted by or under any law relating to the Armed Forces. If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 Armed Forces Act. 38. The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further, the law laid down by this Court, as referred to above, being binding on the High Court, we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India. | 1[ds]12. A plain reading of the above provisionsA remedy of appeal to Supreme Court against any final order passed by the Tribunal under Section 30 with the leave of the Tribunal is provided under Section 31 of the Act.ii In case leave is refused by the Tribunal, an application to the Supreme Court for leave can be made as provided under sub-section (1) and (2) of Section 31 of the Act.iii Against any order or decision of the Tribunal made under Section 19 in exercise of its jurisdiction to punish for contempt, an appeal under sub-section (2) of Section 30 lies to the Supreme Court as of right.Therefore, it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court so far as it relates to suit relating to condition of service of the persons subject to Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, which are special laws enacted by the Parliament by virtue of exclusive legislative power vested under Article 246 of the Constitution of India read with Entries 1 & 2 of List I of the Seventh Schedule.Judicial review under Article 32 and 226 is a basic feature of the Constitution beyond the plea of amendability. While under Article 32 of the Constitution a person has a right to move before Supreme Court by appropriate proceedings for enforcement of the rights conferred by Part III of the Constitution, no fundament right can be claimed by any person to move before the High Court by appropriate proceedings under Article 226 for enforcement of the rights conferred by the Constitution or Statute.From the aforesaid decisions of this Court in L. Chandra and S.N. Mukherjee, we find that the power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further, the law laid down by this Court, as referred to above, being binding on the High Court, we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India. | 1 | 13,274 | 494 | ### Instruction:
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be unnecessary for the aggrieved party to approach this Court for a leave to file such an appeal. An appeal by certificate would then be maintainable as a matter of right in view of Section 30 which uses the expression “an appeal shall lie to the Supreme Court”. That appears to us to be the true legal position on a plain reading of the provisions of Sections 30 and 31.” Thus, we find that though under Section 30 no person has a right of appeal against the final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act, but it is statutory appeal which lies to this Court. 34. The aforesaid decisions rendered by this Court can be summarised as follows: (i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L. Chandra and S.N. Mukherjee).(ii)The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.(Refer: Mafatlal Industries Ltd.).(iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma).(iv)The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer: Nivedita Sharma). 35. Article 141 of the Constitution of India reads as follows: “Article 141.Law declared by Supreme Court to be binding on all courts.-The law declared by the Supreme Court shall be binding on all courts within the territory of India.” 36. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited(SOUTHCO) this Court observed that it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case. In Chhabil Dass Agrawal this Court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. In Cicily Kallarackal this Court issued a direction of caution that it will not be a proper exercise of the jurisdiction by the High Court to entertain a writ petition against such orders against which statutory appeal lies before this Court. In view of Article 141(1) the law as laid down by this Court, as referred above, is binding on all courts of India including the High Courts. 37. Likelihood of anomalous situation If the High Court entertains a petition under Article 226 of the Constitution of India against order passed by Armed Forces Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e. Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from this Court. Section 30 provides for an appeal to this Court subject to leave granted under Section 31 of the Act. By clause (2) of Article 136 of the Constitution of India, the appellate jurisdiction of this Court under Article 136 has been excluded in relation to any judgment, determination, sentence or order passed or made by any court or Tribunal constituted by or under any law relating to the Armed Forces. If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal. Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 Armed Forces Act. 38. The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further, the law laid down by this Court, as referred to above, being binding on the High Court, we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India.
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12. A plain reading of the above provisionsA remedy of appeal to Supreme Court against any final order passed by the Tribunal under Section 30 with the leave of the Tribunal is provided under Section 31 of the Act.ii In case leave is refused by the Tribunal, an application to the Supreme Court for leave can be made as provided under sub-section (1) and (2) of Section 31 of the Act.iii Against any order or decision of the Tribunal made under Section 19 in exercise of its jurisdiction to punish for contempt, an appeal under sub-section (2) of Section 30 lies to the Supreme Court as of right.Therefore, it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court so far as it relates to suit relating to condition of service of the persons subject to Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, which are special laws enacted by the Parliament by virtue of exclusive legislative power vested under Article 246 of the Constitution of India read with Entries 1 & 2 of List I of the Seventh Schedule.Judicial review under Article 32 and 226 is a basic feature of the Constitution beyond the plea of amendability. While under Article 32 of the Constitution a person has a right to move before Supreme Court by appropriate proceedings for enforcement of the rights conferred by Part III of the Constitution, no fundament right can be claimed by any person to move before the High Court by appropriate proceedings under Article 226 for enforcement of the rights conferred by the Constitution or Statute.From the aforesaid decisions of this Court in L. Chandra and S.N. Mukherjee, we find that the power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further, the law laid down by this Court, as referred to above, being binding on the High Court, we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India.
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Kapur Chand Jain Vs. B. S. Grewal & Others | *(v) * * * *(vi) * * * *(vii) * * * *Explanation :- For the purposes of cl. (iii), a tenant shall be deemed to be in arrears of rent at the commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execution of decree or order, directing him to pay such arrears of rent."Section 10 provides the procedure which has to be followed when the landlord makes an application. That section, however, need not be quoted because no question about the right procedure arises here.4. It will be noticed that the first clause of S. 14-A is general. It enables a land-owner to apply for the eviction of his tenant on any of the grounds stated in the Act in S.9. The second clause is designed primarily to enable the land-owners to recover arrears of rent from a tenant but the tenant may be ordered to be evicted if after the determination of the rent he does not pay it within the time fixed by the Collector. Clause (iii) enables a tenant to inform the Collector of the landlords refusal to accept rent from him or of a demand of rent in excess of what it should be under the Act.5. The Rules for the determination of the value of the produce under S. 12 did not come into existence till May 19, 1953. The appellant has taken advantage of this circumstance to plead before us that his failure to pay the rent was solely due to his inability to determine the exact rent in the manner contemplated in S. 12 and the Rules. This belies his statement that he took the amount to the landlord but the landlord refused to receive it. His statement was rightly not believed because if the landlord has refused to receive payment, the appellant would have informed the Assistant Collector under S. 14-A (iii) and asked for protection. He did nothing of the kind. It is quite clear that he took advantage of the new Act to avoid payment of rent. For two first year he did so on the ground that the tube-well was not functioning according to the agreement. For the subsequent years he avoided payment on the ground that he was only required to pay 1/ 3 rd of the produce or its value. For every year a suit had to be filed and recoveries were only made through the Court. This establishes the very kind of conduct which is contemplated by S.9 (1)(ii) and which furnishes a ground for eviction of the tenant under S. 14-A (i).6. Mr. lyengar argues that S.9 (1) (ii) applies prospectively and the conduct of the tenant prior to the enactment of S. 14-A cannot be taken into account. In our opinion, the conduct of the tenant prior to the coming into form of the new section can be taken into account. No doubt a statute must be applied prospectively. But a statute is not applied retrospectively because a part of the requisites for its action is drawn from a moment of time prior to its passing. The clause in question makes a particular conduct the ground for an application for eviction. The necessary condition for the application of S.9(1)(ii) may commence even before the Act came into force and past conduct, which is as relevant for the clause as conduct after the coming into force of the Act. cannot be overlooked. The Tribunals were, therefore, right in considering conduct of the appellant prior to the coming into force of S.14-A while determining whether the appellant was irregular in paying the rent.7. Mr. lyengar next contends that as under cl. (ii) of S. 14-A the appellant was asked to pay the arrears of rent and he paid them within the time fixed, no eviction can be ordered. Clause (ii) deals with eviction as punishment for non-compliance with the orders of the Court. Clause (i) deals with evictions for any of the reasons given in S. 9 (1). One such reason is that the tenant has failed to pay rent regularly without sufficient cause. Eviction under the second clause is for failure to carry out the orders to deposit arrears of rent within the time fixed for payment and eviction under the first clause is a penalty for not paying the rent regularly without sufficient cause. The clauses are on different-footing and as the scheme of the Act itself shows different Tribunals determine the two issues. The appellant tried to have the various proceedings consolidated in the same Court, but curiously enough he asked that the proceedings for the recovery of arrears of rent should be stayed. His motive is quite apparent. He wanted to defend himself against liability arising under S. 9 (1)(i) on the ground that he could not pay the rent till 1/ 3rd of the produce or its value was determined under the Rules. We have said above that his statement was that he wanted to pay the exact amount but the landlord did not receive it. It is quite obvious that he avoided payment over the years under one pretext or the other and the Tribunals were right in holding that he had failed to make out sufficient cause for non-payment. Indeed such a finding given concurrently by the High Court and the three Tribunals below would be sufficient for the disposal of the case. We have only allowed the argument to be raised because Mr. Iyengar claimed that conditions on which persons can be evicted under the two clauses of S. 14-A, were inconsistent. On examination it is apparent that the reasons for eviction under the two clauses are entirely different. The appellant could not be evicted under the second clause of S. 14-A but it is obvious that his case is covered by the first clause. The irregularity in payment is patent and there was no sufficient cause. | 0[ds]In our opinion, the conduct of the tenant prior to the coming into form of the new section can be taken into account. No doubt a statute must be applied prospectively. But a statute is not applied retrospectively because a part of the requisites for its action is drawn from a moment of time prior to its passing. The clause in question makes a particular conduct the ground for an application for eviction. The necessary condition for the application of S.9(1)(ii) may commence even before the Act came into force and past conduct, which is as relevant for the clause as conduct after the coming into force of the Act. cannot be overlooked. The Tribunals were, therefore, right in considering conduct of the appellant prior to the coming into force of S.14-A while determining whether the appellant was irregular in paying the(ii) deals with eviction as punishment for non-compliance with the orders of the Court. Clause (i) deals with evictions for any of the reasons given in S. 9 (1). One such reason is that the tenant has failed to pay rent regularly without sufficient cause. Eviction under the second clause is for failure to carry out the orders to deposit arrears of rent within the time fixed for payment and eviction under the first clause is a penalty for not paying the rent regularly without sufficient cause. The clauses are on different-footing and as the scheme of the Act itself shows different Tribunals determine the two issues. The appellant tried to have the various proceedings consolidated in the same Court, but curiously enough he asked that the proceedings for the recovery of arrears of rent should be stayed. His motive is quite apparent. He wanted to defend himself against liability arising under S. 9 (1)(i) on the ground that he could not pay the rent till 1/ 3rd of the produce or its value was determined under the Rules. We have said above that his statement was that he wanted to pay the exact amount but the landlord did not receive it. It is quite obvious that he avoided payment over the years under one pretext or the other and the Tribunals were right in holding that he had failed to make out sufficient cause for non-payment. Indeed such a finding given concurrently by the High Court and the three Tribunals below would be sufficient for the disposal of the case. We have only allowed the argument to be raised because Mr. Iyengar claimed that conditions on which persons can be evicted under the two clauses of S. 14-A, were inconsistent. On examination it is apparent that the reasons for eviction under the two clauses are entirely different. The appellant could not be evicted under the second clause of S. 14-A but it is obvious that his case is covered by the first clause. The irregularity in payment is patent and there was no sufficient cause. | 0 | 2,445 | 537 | ### 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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*(v) * * * *(vi) * * * *(vii) * * * *Explanation :- For the purposes of cl. (iii), a tenant shall be deemed to be in arrears of rent at the commencement of this Act, only if the payment of arrears is not made by the tenant within a period of two months from the date of notice of the execution of decree or order, directing him to pay such arrears of rent."Section 10 provides the procedure which has to be followed when the landlord makes an application. That section, however, need not be quoted because no question about the right procedure arises here.4. It will be noticed that the first clause of S. 14-A is general. It enables a land-owner to apply for the eviction of his tenant on any of the grounds stated in the Act in S.9. The second clause is designed primarily to enable the land-owners to recover arrears of rent from a tenant but the tenant may be ordered to be evicted if after the determination of the rent he does not pay it within the time fixed by the Collector. Clause (iii) enables a tenant to inform the Collector of the landlords refusal to accept rent from him or of a demand of rent in excess of what it should be under the Act.5. The Rules for the determination of the value of the produce under S. 12 did not come into existence till May 19, 1953. The appellant has taken advantage of this circumstance to plead before us that his failure to pay the rent was solely due to his inability to determine the exact rent in the manner contemplated in S. 12 and the Rules. This belies his statement that he took the amount to the landlord but the landlord refused to receive it. His statement was rightly not believed because if the landlord has refused to receive payment, the appellant would have informed the Assistant Collector under S. 14-A (iii) and asked for protection. He did nothing of the kind. It is quite clear that he took advantage of the new Act to avoid payment of rent. For two first year he did so on the ground that the tube-well was not functioning according to the agreement. For the subsequent years he avoided payment on the ground that he was only required to pay 1/ 3 rd of the produce or its value. For every year a suit had to be filed and recoveries were only made through the Court. This establishes the very kind of conduct which is contemplated by S.9 (1)(ii) and which furnishes a ground for eviction of the tenant under S. 14-A (i).6. Mr. lyengar argues that S.9 (1) (ii) applies prospectively and the conduct of the tenant prior to the enactment of S. 14-A cannot be taken into account. In our opinion, the conduct of the tenant prior to the coming into form of the new section can be taken into account. No doubt a statute must be applied prospectively. But a statute is not applied retrospectively because a part of the requisites for its action is drawn from a moment of time prior to its passing. The clause in question makes a particular conduct the ground for an application for eviction. The necessary condition for the application of S.9(1)(ii) may commence even before the Act came into force and past conduct, which is as relevant for the clause as conduct after the coming into force of the Act. cannot be overlooked. The Tribunals were, therefore, right in considering conduct of the appellant prior to the coming into force of S.14-A while determining whether the appellant was irregular in paying the rent.7. Mr. lyengar next contends that as under cl. (ii) of S. 14-A the appellant was asked to pay the arrears of rent and he paid them within the time fixed, no eviction can be ordered. Clause (ii) deals with eviction as punishment for non-compliance with the orders of the Court. Clause (i) deals with evictions for any of the reasons given in S. 9 (1). One such reason is that the tenant has failed to pay rent regularly without sufficient cause. Eviction under the second clause is for failure to carry out the orders to deposit arrears of rent within the time fixed for payment and eviction under the first clause is a penalty for not paying the rent regularly without sufficient cause. The clauses are on different-footing and as the scheme of the Act itself shows different Tribunals determine the two issues. The appellant tried to have the various proceedings consolidated in the same Court, but curiously enough he asked that the proceedings for the recovery of arrears of rent should be stayed. His motive is quite apparent. He wanted to defend himself against liability arising under S. 9 (1)(i) on the ground that he could not pay the rent till 1/ 3rd of the produce or its value was determined under the Rules. We have said above that his statement was that he wanted to pay the exact amount but the landlord did not receive it. It is quite obvious that he avoided payment over the years under one pretext or the other and the Tribunals were right in holding that he had failed to make out sufficient cause for non-payment. Indeed such a finding given concurrently by the High Court and the three Tribunals below would be sufficient for the disposal of the case. We have only allowed the argument to be raised because Mr. Iyengar claimed that conditions on which persons can be evicted under the two clauses of S. 14-A, were inconsistent. On examination it is apparent that the reasons for eviction under the two clauses are entirely different. The appellant could not be evicted under the second clause of S. 14-A but it is obvious that his case is covered by the first clause. The irregularity in payment is patent and there was no sufficient cause.
### Response:
0
### Explanation:
In our opinion, the conduct of the tenant prior to the coming into form of the new section can be taken into account. No doubt a statute must be applied prospectively. But a statute is not applied retrospectively because a part of the requisites for its action is drawn from a moment of time prior to its passing. The clause in question makes a particular conduct the ground for an application for eviction. The necessary condition for the application of S.9(1)(ii) may commence even before the Act came into force and past conduct, which is as relevant for the clause as conduct after the coming into force of the Act. cannot be overlooked. The Tribunals were, therefore, right in considering conduct of the appellant prior to the coming into force of S.14-A while determining whether the appellant was irregular in paying the(ii) deals with eviction as punishment for non-compliance with the orders of the Court. Clause (i) deals with evictions for any of the reasons given in S. 9 (1). One such reason is that the tenant has failed to pay rent regularly without sufficient cause. Eviction under the second clause is for failure to carry out the orders to deposit arrears of rent within the time fixed for payment and eviction under the first clause is a penalty for not paying the rent regularly without sufficient cause. The clauses are on different-footing and as the scheme of the Act itself shows different Tribunals determine the two issues. The appellant tried to have the various proceedings consolidated in the same Court, but curiously enough he asked that the proceedings for the recovery of arrears of rent should be stayed. His motive is quite apparent. He wanted to defend himself against liability arising under S. 9 (1)(i) on the ground that he could not pay the rent till 1/ 3rd of the produce or its value was determined under the Rules. We have said above that his statement was that he wanted to pay the exact amount but the landlord did not receive it. It is quite obvious that he avoided payment over the years under one pretext or the other and the Tribunals were right in holding that he had failed to make out sufficient cause for non-payment. Indeed such a finding given concurrently by the High Court and the three Tribunals below would be sufficient for the disposal of the case. We have only allowed the argument to be raised because Mr. Iyengar claimed that conditions on which persons can be evicted under the two clauses of S. 14-A, were inconsistent. On examination it is apparent that the reasons for eviction under the two clauses are entirely different. The appellant could not be evicted under the second clause of S. 14-A but it is obvious that his case is covered by the first clause. The irregularity in payment is patent and there was no sufficient cause.
|
Voltas Ltd Vs. Its Workmen | what the exact position was in the matter of free service to such goods. The learned counsel however could not agree as to what was the exact position. It seems to us that if these goods are also serviced free or for charges but in the same way as other goods sold by the appellant in India, the respondents are entitled to ask that the income from commission on these goods should be taken into account. As however there is no definite evidence on the point we cannot lay down that such commission must always be taken into account. At the same time, so far as this particular year is concerned we have to take this amount into account as the appellant whose duty it was to satisfy the tribunal that this was extraneous income has failed to place proper evidence as to servicing of these goods. A claim of this character must always be proved to the satisfaction of the tribunal. In the circumstances we see no reason to interfere with the order of the tribunal so far as this part of its order is concerned. 5. Two other points have been urged on behalf of the appellant with respect to the interest allowed on capital and on working capital. The tribunal has allowed the usual six per cent, on capital and four per cent, on working capital. The appellant claimed interest at a higher rate in both cases. We agree with that tribunal that there is no special reason why any higher rate of return should be allowed to the appellant. 6. This brings us to the objections raised on behalf of the respondents. The main objection is to a sum of Rs. 4.4 lacs allowed by the tribunal as income-tax, which is said to be with respect to the previous year. It appears that there is a difference between the accounting year of the appellant and the financial year. In the particular year in dispute there was an increase in the rate of tax which resulted in extra payment which had to be paid in this year. In these special circumstances, therefore, the tribunal allowed this amount and we see no reason to disagree. 7. Next it is urged that the tribunal had allowed a sum of Rs. 4.76 lacs for making provision for gratuity as a prior charge. This is obviously incorrect, as this Court has pointed out in Associated Cement Companies case, 1959 SCR 925 : (AIR 1959 SC 967 ) (supra) that no fresh items of prior charge can be added to the Full Bench formula, though at the time of distribution of available surplus such matters as provisions for gratuity and debenture redemption fund, might be taken into account. This disposes of the objections relating to the accounts. 8. Two other points have been urged on behalf of the respondents. They are with respect to (1) salesmen and (2) apprentices. The tribunal has excluded these two categories from the award of bonus made by it. The respondents contend that they should also have been included. We are of opinion that the decision of the tribunal in this behalf is correct. So far as salesmen are concerned, the tribunal has examined the relevant decisions of other tribunals and has come to the conclusion that salesmen who are given commission on sales are not treated on par with other workmen in the matter of bonus. It has also been found that the clerical work done by salesmen is small and incidental to their duty as such; salesmen have therefore been held not to be workmen within the meaning of the Industrial Disputes Act. The tribunal has pointed out that the commission on an average works out to about Rs. 1000/- per mensem in the case of salesmen and therefore their total emoluments are quite adequate. Besides, the salesmen being paid commission on sales have already taken a share in the profits of the appellant on a fair basis and therefore there is no justification for granting them further bonus out of the available surplus of profits. As for the apprentices, the tribunal has held that there is a definite term of contract between them and the appellant by which they are excluded from getting bonus. Besides, as the appellant has pointed out, the apprentices are merely learning their jobs and the appellant has to incur expenditure on their training and they hardly contribute to the profits of the appellant. The view of the tribunal therefore with respect to apprentices also is correct. 9. We now turn to the calculation of the available surplus according to the decision in Associated Cement Companies case, 1959 S C R 925: (AIR 1959 S C 967) (supra). The gross profit found by the tribunal will stand in view of what we have said with respect to various items challenged by either party. The chart of calculation will be as follows:- In Lacs Gross profits Rs. 109.97 Less depreciation 3.28 Balance 106.69 Less income-tax @ 51-5 per cent. 54.20 Balance 52.49 Less dividend tax, wealth tax, etc. 7.50 Balance 44.99 Less return on capital at 6 per cent. 13.20 Balance 31.79 Less return on working capital at 4 per cent. 1.66 Available surplus 30.13 10. Out of this, the tribunal has allowed five months basic wages as bonus to the respondents which works out to Rs. 16.80 lacs. In the circumstances it cannot be said that the award of the tribunal is not justified. We do not think that we would be justified in giving anything more than what the tribunal has awarded, because the appellant has to provide for a fund for gratuity, for it is a new concern which took over the old employees of another concern when it was started and has thus a greater liability towards gratuity than otherwise would be the case. We are therefore of opinion that the tribunals award of five months basic wages as bonus for the year in dispute should stand. | 0[ds]It is urged that this is a permissible item of expense and therefore the tribunal should not have added it back in arriving at the gross profits. We are of opinion that the tribunal was right in not allowing this amount as expenditure. In effect this payment is no different from any amount given in charity by an employer, and though such payment may be justified in the sense that it may not be against the Articles of Association of a company it is none the less an expense which need not be incurred for the business of the company. Besides, though in this particular case the donation considering the circumstances of the case was not much, it is possible that permissible donations may be out of all proportion and may thus result in reducing the available surplus from which low paid workmen are entitled to bonus. We are therefore of opinion that though the law or the rules of the company may permit the appellant to pay such amounts as donations to political funds, this is not a proper expense to be deducted when working out the available surplus in the light of the Full Bench formula. The tribunals decision therefore on this point must be upheldIt is urged that this is a permissible item of expense and therefore the tribunal should not have added it back in arriving at the gross profits. We are of opinion that the tribunal was right in not allowing this amount as expenditure. In effect this payment is no different from any amount given in charity by an employer, and though such payment may be justified in the sense that it may not be against the Articles of Association of a company it is none the less an expense which need not be incurred for the business of the company. Besides, though in this particular case the donation considering the circumstances of the case was not much, it is possible that permissible donations may be out of all proportion and may thus result in reducing the available surplus from which low paid workmen are entitled to bonus. We are therefore of opinion that though the law or the rules of the company may permit the appellant to pay such amounts as donations to political funds, this is not a proper expense to be deducted when working out the available surplus in the light of the Full Bench formula. The tribunals decision therefore on this point must be upheld5. Two other points have been urged on behalf of the appellant with respect to the interest allowed on capital and on working capital. The tribunal has allowed the usual six per cent, on capital and four per cent, on working capital. The appellant claimed interest at a higher rate in both cases. We agree with that tribunal that there is no special reason why any higher rate of return should be allowed to the appellant5. Two other points have been urged on behalf of the appellant with respect to the interest allowed on capital and on working capital. The tribunal has allowed the usual six per cent, on capital and four per cent, on working capital. The appellant claimed interest at a higher rate in both cases. We agree with that tribunal that there is no special reason why any higher rate of return should be allowed to the appellant5. Two other points have been urged on behalf of the appellant with respect to the interest allowed on capital and on working capital. The tribunal has allowed the usual six per cent, on capital and four per cent, on working capital. The appellant claimed interest at a higher rate in both cases. We agree with that tribunal that there is no special reason why any higher rate of return should be allowed to the | 0 | 2,192 | 679 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
what the exact position was in the matter of free service to such goods. The learned counsel however could not agree as to what was the exact position. It seems to us that if these goods are also serviced free or for charges but in the same way as other goods sold by the appellant in India, the respondents are entitled to ask that the income from commission on these goods should be taken into account. As however there is no definite evidence on the point we cannot lay down that such commission must always be taken into account. At the same time, so far as this particular year is concerned we have to take this amount into account as the appellant whose duty it was to satisfy the tribunal that this was extraneous income has failed to place proper evidence as to servicing of these goods. A claim of this character must always be proved to the satisfaction of the tribunal. In the circumstances we see no reason to interfere with the order of the tribunal so far as this part of its order is concerned. 5. Two other points have been urged on behalf of the appellant with respect to the interest allowed on capital and on working capital. The tribunal has allowed the usual six per cent, on capital and four per cent, on working capital. The appellant claimed interest at a higher rate in both cases. We agree with that tribunal that there is no special reason why any higher rate of return should be allowed to the appellant. 6. This brings us to the objections raised on behalf of the respondents. The main objection is to a sum of Rs. 4.4 lacs allowed by the tribunal as income-tax, which is said to be with respect to the previous year. It appears that there is a difference between the accounting year of the appellant and the financial year. In the particular year in dispute there was an increase in the rate of tax which resulted in extra payment which had to be paid in this year. In these special circumstances, therefore, the tribunal allowed this amount and we see no reason to disagree. 7. Next it is urged that the tribunal had allowed a sum of Rs. 4.76 lacs for making provision for gratuity as a prior charge. This is obviously incorrect, as this Court has pointed out in Associated Cement Companies case, 1959 SCR 925 : (AIR 1959 SC 967 ) (supra) that no fresh items of prior charge can be added to the Full Bench formula, though at the time of distribution of available surplus such matters as provisions for gratuity and debenture redemption fund, might be taken into account. This disposes of the objections relating to the accounts. 8. Two other points have been urged on behalf of the respondents. They are with respect to (1) salesmen and (2) apprentices. The tribunal has excluded these two categories from the award of bonus made by it. The respondents contend that they should also have been included. We are of opinion that the decision of the tribunal in this behalf is correct. So far as salesmen are concerned, the tribunal has examined the relevant decisions of other tribunals and has come to the conclusion that salesmen who are given commission on sales are not treated on par with other workmen in the matter of bonus. It has also been found that the clerical work done by salesmen is small and incidental to their duty as such; salesmen have therefore been held not to be workmen within the meaning of the Industrial Disputes Act. The tribunal has pointed out that the commission on an average works out to about Rs. 1000/- per mensem in the case of salesmen and therefore their total emoluments are quite adequate. Besides, the salesmen being paid commission on sales have already taken a share in the profits of the appellant on a fair basis and therefore there is no justification for granting them further bonus out of the available surplus of profits. As for the apprentices, the tribunal has held that there is a definite term of contract between them and the appellant by which they are excluded from getting bonus. Besides, as the appellant has pointed out, the apprentices are merely learning their jobs and the appellant has to incur expenditure on their training and they hardly contribute to the profits of the appellant. The view of the tribunal therefore with respect to apprentices also is correct. 9. We now turn to the calculation of the available surplus according to the decision in Associated Cement Companies case, 1959 S C R 925: (AIR 1959 S C 967) (supra). The gross profit found by the tribunal will stand in view of what we have said with respect to various items challenged by either party. The chart of calculation will be as follows:- In Lacs Gross profits Rs. 109.97 Less depreciation 3.28 Balance 106.69 Less income-tax @ 51-5 per cent. 54.20 Balance 52.49 Less dividend tax, wealth tax, etc. 7.50 Balance 44.99 Less return on capital at 6 per cent. 13.20 Balance 31.79 Less return on working capital at 4 per cent. 1.66 Available surplus 30.13 10. Out of this, the tribunal has allowed five months basic wages as bonus to the respondents which works out to Rs. 16.80 lacs. In the circumstances it cannot be said that the award of the tribunal is not justified. We do not think that we would be justified in giving anything more than what the tribunal has awarded, because the appellant has to provide for a fund for gratuity, for it is a new concern which took over the old employees of another concern when it was started and has thus a greater liability towards gratuity than otherwise would be the case. We are therefore of opinion that the tribunals award of five months basic wages as bonus for the year in dispute should stand.
### Response:
0
### Explanation:
It is urged that this is a permissible item of expense and therefore the tribunal should not have added it back in arriving at the gross profits. We are of opinion that the tribunal was right in not allowing this amount as expenditure. In effect this payment is no different from any amount given in charity by an employer, and though such payment may be justified in the sense that it may not be against the Articles of Association of a company it is none the less an expense which need not be incurred for the business of the company. Besides, though in this particular case the donation considering the circumstances of the case was not much, it is possible that permissible donations may be out of all proportion and may thus result in reducing the available surplus from which low paid workmen are entitled to bonus. We are therefore of opinion that though the law or the rules of the company may permit the appellant to pay such amounts as donations to political funds, this is not a proper expense to be deducted when working out the available surplus in the light of the Full Bench formula. The tribunals decision therefore on this point must be upheldIt is urged that this is a permissible item of expense and therefore the tribunal should not have added it back in arriving at the gross profits. We are of opinion that the tribunal was right in not allowing this amount as expenditure. In effect this payment is no different from any amount given in charity by an employer, and though such payment may be justified in the sense that it may not be against the Articles of Association of a company it is none the less an expense which need not be incurred for the business of the company. Besides, though in this particular case the donation considering the circumstances of the case was not much, it is possible that permissible donations may be out of all proportion and may thus result in reducing the available surplus from which low paid workmen are entitled to bonus. We are therefore of opinion that though the law or the rules of the company may permit the appellant to pay such amounts as donations to political funds, this is not a proper expense to be deducted when working out the available surplus in the light of the Full Bench formula. The tribunals decision therefore on this point must be upheld5. Two other points have been urged on behalf of the appellant with respect to the interest allowed on capital and on working capital. The tribunal has allowed the usual six per cent, on capital and four per cent, on working capital. The appellant claimed interest at a higher rate in both cases. We agree with that tribunal that there is no special reason why any higher rate of return should be allowed to the appellant5. Two other points have been urged on behalf of the appellant with respect to the interest allowed on capital and on working capital. The tribunal has allowed the usual six per cent, on capital and four per cent, on working capital. The appellant claimed interest at a higher rate in both cases. We agree with that tribunal that there is no special reason why any higher rate of return should be allowed to the appellant5. Two other points have been urged on behalf of the appellant with respect to the interest allowed on capital and on working capital. The tribunal has allowed the usual six per cent, on capital and four per cent, on working capital. The appellant claimed interest at a higher rate in both cases. We agree with that tribunal that there is no special reason why any higher rate of return should be allowed to the
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Municipal Corporation, Faridabad Vs. Nitco Roadways | S.P.BHARUCHA(1) The order under appeal was passed by a division bench of the High Court of Punjab and Haryana rejecting, summarily, the writ petition filed by the present appellant in these circumstances:(2) The appellant is the municipal corporation of Faridabad. The first respondent is a trucking company. On 24/05/1994 a truck of the first respondent, carrying gases of the value of Rs, 5,90,425.36, crossed the appellants municipal limits without payment of octroi. It had penetrated 4 kms. within those limits before it was intercepted by the octroi departments flying squad. The flying squad seized the gases and impounded the truck. On the same day, the first respondent deposited the octroi amount of Rs. 23,617.02 and wrote a letter to the administrator of the appellants. The letter said that its truck had crossed into the appellants municipal limits without payment of octroi because the driver of the truck was new. The appellants were requested to release the truck on the assurance that such a mistake would not happen again. The letter ended with the sentence, "we are ready to compromise." On the basis of the said letter, a composition fee was calculated in the sum often times the octroi payable, at Rs. 2,36,170.20. On 27/05/1994 the first respondent made a representation to the zonal taxation officer of the appellants. The letter now stated that the new truck driver had passed the octroi barrier and had stopped to enquire where he was when he was spotted and the truck was seized. The letter assured the zonal taxation officer that the respondents "would not like to evade octroi in future. " and again, "I on behalf of my company assure you that we will not evade any octroi in future." On 3/06/1994, a director of the first respondent met the commissioner, municipal corporation and sought the waiver of the composition fee. Acceding to his request, the appellants commissioner reduced the composition fee to twice the amount of the octroi payable. On 4/06/1994, the respondents again represented against this order and now claimed that what had been deposited as composition fee had been deposited under protest. The first respondent was informed that the compounding having been made at its request, no further action could be taken. Unfazed, the first respondent filed an appeal before the commissioner, Gurgaon division and he, by his order dated 16/09/1994, allowed the appeal. In his view, the appellants were not justified in requiring the first respondent to pay "such big amount of fine for the fault of the driver especially when the reputation of the appellant/firm is far from any blemish." The order of the commissioner, Gurgaon division was impugned in the writ petition that the appellants filed before the High Court, in which writ petition was summarily dismissed.(3) It was submitted by learned counsel for the appellants that the entry of the first respondents truck into the octroi limits without payment of octroi was admitted and that the first respondent had itself sought composition. There was no warrant for the appeal against such composition and for the order thereon. In the submission of learned counsel for the respondents, the order of the commissioner, Gurgaon division was justified because there was no intention to evade octroi on the part of the respondents. (4) In our view, there was no warrant for the appeal by the first respondent to the commissioner, Gurgaon, and no warrant for the order thereon, having regard to the fact that the first respondent admitted that its truck had penetrated into the municipal limits of the appellants without the payment of octroi and it had, thereafter, sought composition of the offence. When it was in a hurry to get the truck and the goods in it released, the first respondent wrote the first letter and, having got the same released, embroidered on the facts stated therein, that, among other things, the amount of the composition fee had been paid under protest. We think, therefore, that the High Court was wrong in dismissing the writ petition, and that order is set aside. | 1[ds](4) In our view, there was no warrant for the appeal by the first respondent to the commissioner, Gurgaon, and no warrant for the order thereon, having regard to the fact that the first respondent admitted that its truck had penetrated into the municipal limits of the appellants without the payment of octroi and it had, thereafter, sought composition of the offence. When it was in a hurry to get the truck and the goods in it released, the first respondent wrote the first letter and, having got the same released, embroidered on the facts stated therein, that, among other things, the amount of the composition fee had been paid under protest. We think, therefore, that the High Court was wrong in dismissing the writ petition, and that order is set aside. | 1 | 762 | 156 | ### 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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S.P.BHARUCHA(1) The order under appeal was passed by a division bench of the High Court of Punjab and Haryana rejecting, summarily, the writ petition filed by the present appellant in these circumstances:(2) The appellant is the municipal corporation of Faridabad. The first respondent is a trucking company. On 24/05/1994 a truck of the first respondent, carrying gases of the value of Rs, 5,90,425.36, crossed the appellants municipal limits without payment of octroi. It had penetrated 4 kms. within those limits before it was intercepted by the octroi departments flying squad. The flying squad seized the gases and impounded the truck. On the same day, the first respondent deposited the octroi amount of Rs. 23,617.02 and wrote a letter to the administrator of the appellants. The letter said that its truck had crossed into the appellants municipal limits without payment of octroi because the driver of the truck was new. The appellants were requested to release the truck on the assurance that such a mistake would not happen again. The letter ended with the sentence, "we are ready to compromise." On the basis of the said letter, a composition fee was calculated in the sum often times the octroi payable, at Rs. 2,36,170.20. On 27/05/1994 the first respondent made a representation to the zonal taxation officer of the appellants. The letter now stated that the new truck driver had passed the octroi barrier and had stopped to enquire where he was when he was spotted and the truck was seized. The letter assured the zonal taxation officer that the respondents "would not like to evade octroi in future. " and again, "I on behalf of my company assure you that we will not evade any octroi in future." On 3/06/1994, a director of the first respondent met the commissioner, municipal corporation and sought the waiver of the composition fee. Acceding to his request, the appellants commissioner reduced the composition fee to twice the amount of the octroi payable. On 4/06/1994, the respondents again represented against this order and now claimed that what had been deposited as composition fee had been deposited under protest. The first respondent was informed that the compounding having been made at its request, no further action could be taken. Unfazed, the first respondent filed an appeal before the commissioner, Gurgaon division and he, by his order dated 16/09/1994, allowed the appeal. In his view, the appellants were not justified in requiring the first respondent to pay "such big amount of fine for the fault of the driver especially when the reputation of the appellant/firm is far from any blemish." The order of the commissioner, Gurgaon division was impugned in the writ petition that the appellants filed before the High Court, in which writ petition was summarily dismissed.(3) It was submitted by learned counsel for the appellants that the entry of the first respondents truck into the octroi limits without payment of octroi was admitted and that the first respondent had itself sought composition. There was no warrant for the appeal against such composition and for the order thereon. In the submission of learned counsel for the respondents, the order of the commissioner, Gurgaon division was justified because there was no intention to evade octroi on the part of the respondents. (4) In our view, there was no warrant for the appeal by the first respondent to the commissioner, Gurgaon, and no warrant for the order thereon, having regard to the fact that the first respondent admitted that its truck had penetrated into the municipal limits of the appellants without the payment of octroi and it had, thereafter, sought composition of the offence. When it was in a hurry to get the truck and the goods in it released, the first respondent wrote the first letter and, having got the same released, embroidered on the facts stated therein, that, among other things, the amount of the composition fee had been paid under protest. We think, therefore, that the High Court was wrong in dismissing the writ petition, and that order is set aside.
### Response:
1
### Explanation:
(4) In our view, there was no warrant for the appeal by the first respondent to the commissioner, Gurgaon, and no warrant for the order thereon, having regard to the fact that the first respondent admitted that its truck had penetrated into the municipal limits of the appellants without the payment of octroi and it had, thereafter, sought composition of the offence. When it was in a hurry to get the truck and the goods in it released, the first respondent wrote the first letter and, having got the same released, embroidered on the facts stated therein, that, among other things, the amount of the composition fee had been paid under protest. We think, therefore, that the High Court was wrong in dismissing the writ petition, and that order is set aside.
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Rajal Das Guru Namal Pamanani Vs. The State Of Maharashtra | shall not be deemed to have committed an offence pertaining to the sale of any adulterated or mis-branded article of food if he proves (a) that he purchased the article of food- (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer; (ii) in any other case, from any manufacturer, distributor or dealer with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it." 8. The appellant contended that he was protected by Section 19(2)(a)(i) because he purchased the compounded asafoetida from a duly licensed manufacturer and he sold in the same state as he purchased it. The contention of the appellant is that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article of food in a case where a licence is prescribed for the sale thereof from a duly licensed manufacturer, distributor or dealer. The appellant contended that the words "with a written warranty in the prescribed form" attach only to Section 19(2)(a)(ii) and not to Section 19(2)(a)(i). He purchased the article from the company who were licensed manufacturer. Therefore, his contention is that he is not deemed to have committed any offence. 9. The Prevention of Food Adulteration Rules which are referred to as the Central Rules deal in Part IX with conditions for sale and licence. Rule 50 states that no person shall manufacture, sell, stock, distribute or exhibit for sale the articles of food, mentioned thereunder except under a licence. Compounded asafoetida is one of the articles mentioned therein. 10. Rule 12A speaks of warranty. Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in form VI-A. The prescribed form VI-A mentions invoice Number, place, date, names of seller and purchaser. There are also columns of date of sale, nature and quality of article, quantity and price. At the foot of the form those words occur: "We hereby certify that food/foods mentioned in this invoice is/are warranted to be the same in nature, substance and quality as that demanded by the vendor. Signature of trader/traders." 11. Rule 12A contains a proviso that no warranty in such form (meaning form VI-A) shall be necessary if the label on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. 12. The Explanation to Rule 12A is that the term "trader" shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesale dealer. 13. It follows from these provisions that a manufacturer has to print a label on the article of food containing a warranty as contemplated in the Act or the manufacturer has to give a cash memo to the vendor in respect of that article containing a warranty as mentioned in the Act and Rules thereunder. 14. The reason why a warranty is required in both the cases contemplated in Section 19(2)(a)(i) and (ii) is that if warranty were not to be insisted upon by the statute and if a vendor would be permitted to have a defence merely by stating that the vendor purchased the goods from a licensed manufacturer, distributor or dealer adulterated or misbranded articles would be marketed by manufacturers, distributors, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the cases in Section 19(2)(a)(i) and (ii). Section 19(2)(a) of the Act will provide a defence where a vendor purchases article of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, a vendor shall not be deemed to have committed an offence pertaining to the sale of any aduterated or misbranded article of food if he proves that he purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. These, salutary provisions are designed for the health of the nation. Therefore, a warranty is enjoined. No laxity should be permitted. 15. Counsel for the appellant relied on the decision of this Court in Andhra Pradesh Grain & Seed Merchants` Association etc. etc. v. Union of India and Anr. [1971] 1 S.C.R. 166 and the observations at page 173 of the Report in support of the proposition that a written warranty in the prescribed form is required only in the case of purchase of articles from manufacturer, distributor or dealer as contemplated in Section 19(2)(a)(ii) of the Act. That is misreading the decision. At page 173 of the Report it is said that a vendor is protected if he has obtained the article from a licensed manufacturer, distributor or dealer with a warranty. 16. The appellant also contended that samples were not taken in accordance with the provisions of the Act and the rules thereunder. Rule 22 states that in the case of asafoetida the approximate quantity to be supplied for analysis is 100 grams and in the case of compounded asafoetida 200 grams. The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by the statute. 17. It is rather surprising that the High Court acquitted the manufacturer and convicted the grocer. The grocers defence was that in spite of requests the manufacturer did not give a warranty. 18. | 1[ds]Rule 12A contains a proviso that no warranty in such form (meaning form VI-A) shall be necessary if the label on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by theExplanation to Rule 12A is that the term "trader" shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesalefollows from these provisions that a manufacturer has to print a label on the article of food containing a warranty as contemplated in the Act or the manufacturer has to give a cash memo to the vendor in respect of that article containing a warranty as mentioned in the Act and Rulesreason why a warranty is required in both the cases contemplated in) and (ii) is that if warranty were not to be insisted upon by the statute and if a vendor would be permitted to have a defence merely by stating that the vendor purchased the goods from a licensed manufacturer, distributor or dealer adulterated or misbranded articles would be marketed by manufacturers, distributors, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the cases in) and (ii). Section 19) of the Act will provide a defence where a vendor purchases article of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, a vendor shall not be deemed to have committed an offence pertaining to the sale of any aduterated or misbranded article of food if he proves that he purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. Thesesalutary provisions are designed for the health of the nation. Therefore, a warranty isappellant also contended that samples were not taken in accordance with the provisions of the Act and the rules thereunder. Rule 22 states that in the case of asafoetida the approximate quantity to be supplied for analysis is 100 grams and in the case of compounded asafoetida 200 grams. The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by theis rather surprising that the High Court acquitted the manufacturer and convicted the grocer. The grocers defence was that in spite of requests the manufacturer did not give a warranty. | 1 | 1,718 | 495 | ### 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:
shall not be deemed to have committed an offence pertaining to the sale of any adulterated or mis-branded article of food if he proves (a) that he purchased the article of food- (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer; (ii) in any other case, from any manufacturer, distributor or dealer with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it." 8. The appellant contended that he was protected by Section 19(2)(a)(i) because he purchased the compounded asafoetida from a duly licensed manufacturer and he sold in the same state as he purchased it. The contention of the appellant is that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article of food in a case where a licence is prescribed for the sale thereof from a duly licensed manufacturer, distributor or dealer. The appellant contended that the words "with a written warranty in the prescribed form" attach only to Section 19(2)(a)(ii) and not to Section 19(2)(a)(i). He purchased the article from the company who were licensed manufacturer. Therefore, his contention is that he is not deemed to have committed any offence. 9. The Prevention of Food Adulteration Rules which are referred to as the Central Rules deal in Part IX with conditions for sale and licence. Rule 50 states that no person shall manufacture, sell, stock, distribute or exhibit for sale the articles of food, mentioned thereunder except under a licence. Compounded asafoetida is one of the articles mentioned therein. 10. Rule 12A speaks of warranty. Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in form VI-A. The prescribed form VI-A mentions invoice Number, place, date, names of seller and purchaser. There are also columns of date of sale, nature and quality of article, quantity and price. At the foot of the form those words occur: "We hereby certify that food/foods mentioned in this invoice is/are warranted to be the same in nature, substance and quality as that demanded by the vendor. Signature of trader/traders." 11. Rule 12A contains a proviso that no warranty in such form (meaning form VI-A) shall be necessary if the label on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. 12. The Explanation to Rule 12A is that the term "trader" shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesale dealer. 13. It follows from these provisions that a manufacturer has to print a label on the article of food containing a warranty as contemplated in the Act or the manufacturer has to give a cash memo to the vendor in respect of that article containing a warranty as mentioned in the Act and Rules thereunder. 14. The reason why a warranty is required in both the cases contemplated in Section 19(2)(a)(i) and (ii) is that if warranty were not to be insisted upon by the statute and if a vendor would be permitted to have a defence merely by stating that the vendor purchased the goods from a licensed manufacturer, distributor or dealer adulterated or misbranded articles would be marketed by manufacturers, distributors, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the cases in Section 19(2)(a)(i) and (ii). Section 19(2)(a) of the Act will provide a defence where a vendor purchases article of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, a vendor shall not be deemed to have committed an offence pertaining to the sale of any aduterated or misbranded article of food if he proves that he purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. These, salutary provisions are designed for the health of the nation. Therefore, a warranty is enjoined. No laxity should be permitted. 15. Counsel for the appellant relied on the decision of this Court in Andhra Pradesh Grain & Seed Merchants` Association etc. etc. v. Union of India and Anr. [1971] 1 S.C.R. 166 and the observations at page 173 of the Report in support of the proposition that a written warranty in the prescribed form is required only in the case of purchase of articles from manufacturer, distributor or dealer as contemplated in Section 19(2)(a)(ii) of the Act. That is misreading the decision. At page 173 of the Report it is said that a vendor is protected if he has obtained the article from a licensed manufacturer, distributor or dealer with a warranty. 16. The appellant also contended that samples were not taken in accordance with the provisions of the Act and the rules thereunder. Rule 22 states that in the case of asafoetida the approximate quantity to be supplied for analysis is 100 grams and in the case of compounded asafoetida 200 grams. The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by the statute. 17. It is rather surprising that the High Court acquitted the manufacturer and convicted the grocer. The grocers defence was that in spite of requests the manufacturer did not give a warranty. 18.
### Response:
1
### Explanation:
Rule 12A contains a proviso that no warranty in such form (meaning form VI-A) shall be necessary if the label on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by theExplanation to Rule 12A is that the term "trader" shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer, manufacturer or wholesalefollows from these provisions that a manufacturer has to print a label on the article of food containing a warranty as contemplated in the Act or the manufacturer has to give a cash memo to the vendor in respect of that article containing a warranty as mentioned in the Act and Rulesreason why a warranty is required in both the cases contemplated in) and (ii) is that if warranty were not to be insisted upon by the statute and if a vendor would be permitted to have a defence merely by stating that the vendor purchased the goods from a licensed manufacturer, distributor or dealer adulterated or misbranded articles would be marketed by manufacturers, distributors, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the cases in) and (ii). Section 19) of the Act will provide a defence where a vendor purchases article of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, a vendor shall not be deemed to have committed an offence pertaining to the sale of any aduterated or misbranded article of food if he proves that he purchased the article from any manufacturer, distributor or dealer with a written warranty in the prescribed form. Thesesalutary provisions are designed for the health of the nation. Therefore, a warranty isappellant also contended that samples were not taken in accordance with the provisions of the Act and the rules thereunder. Rule 22 states that in the case of asafoetida the approximate quantity to be supplied for analysis is 100 grams and in the case of compounded asafoetida 200 grams. The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by theis rather surprising that the High Court acquitted the manufacturer and convicted the grocer. The grocers defence was that in spite of requests the manufacturer did not give a warranty.
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Chandigarh Administration Vs. Laxman Roller Flour Mills Private Limited | 1. Delay condoned. 2. Leave granted. 3. Plot No. 182/12, Industrial Area, Chandigarh was allotted to one M/s Khushal Furnishing and Carpeting Company. The allottee was required to construct building on the said plot of land and obtain an occupation certificate within one year from the date of allotment. Subsequently, the allottee sought permission from the appellant for transfer of the said plot in favour of M/s Laxman Roller Flour Mills Pvt. Ltd. - respondent herein. Permission asked for was granted and a lease deed setting out all the terms and conditions was executed in favour of the respondent. On inspection it was also found that constructions made by the respondent on the said plot of land was not in accordance with the original plan submitted with the appellant. Therefore, the respondent was advised to submit a revised plan to be passed in accordance with the rules and also to complete the construction within the extended period of time. Since the respondent could not complete the construction within the stipulated period, the lease granted in its favour stood cancelled. This led the respondent to file a petition under Articles 226 and 227 of the Constitution of India before the High Court of Punjab and Haryana. The relief sought for by the respondent was as under "(a) issue a writ in the nature of certiorari quashing the impugned orders Annexures P-5 and P-7; (b) issue a writ of mandamus directing the respondents to grant extension and permission to mortgage Industrial Plot No. 182/12, Industrial Area, Phase 1, Chandigarh and restraining the respondents to dispossess the petitioner from the peaceful possession of the industrial plot in dispute; (c) issue other writ order or direction which this Honble Court deems fit in the special circumstances of the case;(d) service of advance notices to the respondents be dispensed with; (c) the petitioner may be exempted from filing certified copies of the annexures; (f) costs of the petition may be awarded to the petitioner; (g) that during the pendency of the writ petition order Annexure P-7 and dispossession of the petitioner may be stayed or any other ad interim order may be passed which this Honble Court deems fit." 4. A perusal of the relief extracted above shows that the writ petitioner-respondent never asked for any relief in the writ petition commanding the Chandigarh Administration to issue completion certificate in its favour. Learned counsel for the respondent frankly stated that there is no allegation in the writ petition to the effect that Chandigarh Administration has illegally withheld the completion certificate. It is settled law that unless the allegations are made in the writ petition and a relief to that effect is also prayed for in the writ petition, the High Court is not justified in issuing any order in excess of the relief prayed for in the writ petition. We are, therefore, satisfied that in the absence of pleading and prayer in the writ petition, the High Court fell in error in issuing directions to the appellant to issue completion certificate to the writ petitioner-respondent. In such circumstances, we set aside the order of the High Court to the extent it directs the Chandigarh Administration to issue completion certificate to the writ petitioner-respondent. | 1[ds]4. A perusal of the relief extracted above shows that the writt never asked for any relief in the writ petition commanding the Chandigarh Administration to issue completion certificate in its favour. Learned counsel for the respondent frankly stated that there is no allegation in the writ petition to the effect that Chandigarh Administration has illegally withheld the completion certificate. It is settled law that unless the allegations are made in the writ petition and a relief to that effect is also prayed for in the writ petition, the High Court is not justified in issuing any order in excess of the relief prayed for in the writ petition. We are, therefore, satisfied that in the absence of pleading and prayer in the writ petition, the High Court fell in error in issuing directions to the appellant to issue completion certificate to the writ. In such circumstances, we set aside the order of the High Court to the extent it directs the Chandigarh Administration to issue completion certificate to the writ | 1 | 597 | 185 | ### 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:
1. Delay condoned. 2. Leave granted. 3. Plot No. 182/12, Industrial Area, Chandigarh was allotted to one M/s Khushal Furnishing and Carpeting Company. The allottee was required to construct building on the said plot of land and obtain an occupation certificate within one year from the date of allotment. Subsequently, the allottee sought permission from the appellant for transfer of the said plot in favour of M/s Laxman Roller Flour Mills Pvt. Ltd. - respondent herein. Permission asked for was granted and a lease deed setting out all the terms and conditions was executed in favour of the respondent. On inspection it was also found that constructions made by the respondent on the said plot of land was not in accordance with the original plan submitted with the appellant. Therefore, the respondent was advised to submit a revised plan to be passed in accordance with the rules and also to complete the construction within the extended period of time. Since the respondent could not complete the construction within the stipulated period, the lease granted in its favour stood cancelled. This led the respondent to file a petition under Articles 226 and 227 of the Constitution of India before the High Court of Punjab and Haryana. The relief sought for by the respondent was as under "(a) issue a writ in the nature of certiorari quashing the impugned orders Annexures P-5 and P-7; (b) issue a writ of mandamus directing the respondents to grant extension and permission to mortgage Industrial Plot No. 182/12, Industrial Area, Phase 1, Chandigarh and restraining the respondents to dispossess the petitioner from the peaceful possession of the industrial plot in dispute; (c) issue other writ order or direction which this Honble Court deems fit in the special circumstances of the case;(d) service of advance notices to the respondents be dispensed with; (c) the petitioner may be exempted from filing certified copies of the annexures; (f) costs of the petition may be awarded to the petitioner; (g) that during the pendency of the writ petition order Annexure P-7 and dispossession of the petitioner may be stayed or any other ad interim order may be passed which this Honble Court deems fit." 4. A perusal of the relief extracted above shows that the writ petitioner-respondent never asked for any relief in the writ petition commanding the Chandigarh Administration to issue completion certificate in its favour. Learned counsel for the respondent frankly stated that there is no allegation in the writ petition to the effect that Chandigarh Administration has illegally withheld the completion certificate. It is settled law that unless the allegations are made in the writ petition and a relief to that effect is also prayed for in the writ petition, the High Court is not justified in issuing any order in excess of the relief prayed for in the writ petition. We are, therefore, satisfied that in the absence of pleading and prayer in the writ petition, the High Court fell in error in issuing directions to the appellant to issue completion certificate to the writ petitioner-respondent. In such circumstances, we set aside the order of the High Court to the extent it directs the Chandigarh Administration to issue completion certificate to the writ petitioner-respondent.
### Response:
1
### Explanation:
4. A perusal of the relief extracted above shows that the writt never asked for any relief in the writ petition commanding the Chandigarh Administration to issue completion certificate in its favour. Learned counsel for the respondent frankly stated that there is no allegation in the writ petition to the effect that Chandigarh Administration has illegally withheld the completion certificate. It is settled law that unless the allegations are made in the writ petition and a relief to that effect is also prayed for in the writ petition, the High Court is not justified in issuing any order in excess of the relief prayed for in the writ petition. We are, therefore, satisfied that in the absence of pleading and prayer in the writ petition, the High Court fell in error in issuing directions to the appellant to issue completion certificate to the writ. In such circumstances, we set aside the order of the High Court to the extent it directs the Chandigarh Administration to issue completion certificate to the writ
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Aravali Power Company Pvt. Ltd Vs. M/S. Era Infra Engineering Ltd | thus the Court would be within its powers to appoint such arbitrator(s) as may be permissible. Paragraph 18 sums up this aspect of the matter:-"18. Keeping in mind the afore-quoted recommendation of the Law Commission, with which spirit, Section 12 has been amended by the Amendment Act, 2015, it is manifest that the main purpose for amending the provision was to provide for neutrality of arbitrators. In order to achieve this, sub-section (5) of Section 12 lays down that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject-matter of the dispute falls under any of the categories specified in the Seventh Schedule, he shall be ineligible to be appointed as an arbitrator. In such an eventuality i.e. when the arbitration clause finds foul with the amended provisions extracted above, the appointment of an arbitrator would be beyond pale of the arbitration agreement, empowering the court to appoint such arbitrator(s) as may be permissible. That would be the effect of non obstante clause contained in sub-section (5) of Section 12 and the other party cannot insist on appointment of the arbitrator in terms of the arbitration agreement."21. Except the decision of this Court in Voestalpine Schienen GMBH (supra) referred to above, all other decisions arose out of matters where invocation of arbitration was before the Amendment Act came into force. Voestalpine Schienen GMBH (supra) was a case where the invocation was on 14.6.2016 i.e. after the Amendment Act and the observations in Para 18 clearly show that since "the arbitration clause finds foul with the amended provisions", the Court was empowered to appoint such arbitrator(s) as may be permissible. The ineligibility of the arbitrator was found in the context of amended Section 12 read with Seventh Schedule (which was brought in by Amendment Act) in a matter where invocation for arbitration was after the Amendment Act had come into force. It is thus clear that in pre-amendment cases, the law laid down in Northern Railway Administration (Supra), as followed in all the aforesaid cases, must be applied, in that the terms of the agreement ought to be adhered to and/or given effect to as closely as possible. Further, the jurisdiction of the Court under Section 11 of 1996 Act would arise only if the conditions specified in clauses (a), (b) and (c) are satisfied. The cases referred to above show that once the conditions for exercise of jurisdiction under Section 11(6) were satisfied, in the exercise of consequential power under Section 11(8), the Court had on certain occasions gone beyond the scope of the concerned arbitration clauses and appointed independent arbitrators. What is clear is, for exercise of such power under Section 11(8), the case must first be made out for exercise of jurisdiction under Section 11(6).22. The principles which emerge from the decisions referred to above are:-A. In cases governed by 1996 Act as it stood before the Amendment Act came into force:-(i) 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 or 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 to the officer whose decision is the subject-matter of the dispute.(ii) unless the cause of action for invoking jurisdiction under Clauses (a), (b) or (c) of sub-section (6) of Section 11 of 1996 Act arises, there is no question of the Chief Justice or his designate exercising power under sub-section (6) of Section 11.(iii) The Chief Justice or his designate while exercising power under sub-section (6) of Section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause.(iv) While exercising such power under sub section (6) of Section 11, If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else.B. In cases governed by 1996 Act after the Amendment Act has come into force:-If the arbitration clause finds foul with the amended provisions, the appointment of the Arbitrator even if apparently in conformity with the arbitration clause in the agreement, would be illegal and thus the Court would be within its powers to appoint such arbitrator(s) as may be permissible.23. The observations of the High Court in paragraphs 37-38 as quoted above show that the exercise was undertaken by the High Court, "in order to make neutrality or to avoid doubt in the mind of the petitioner" and ensure that justice must not only be done and must also be seen to be done. In effect, the High Court applied principles of neutrality and impartiality which have been expanded by way of Amendment Act, even when no cause of action for exercise of power under Section 11(6) had arisen. The procedure as laid down in unamended Section 12 mandated disclosure of circumstances likely to give rise to justifiable doubts as to independence and impartiality of the arbitrator. It is not the case of the Respondent that the provisions of Section 12 in unamended form stood violated on any count. In any case the provision contemplated clear and precise procedure under which the arbitrator could be challenged and the objections in that behalf under Section 13 could be raised within prescribed time and in accordance with the procedure detailed therein. The record shows that no such challenge was raised within the time and in terms of the procedure prescribed. As a matter of fact, the Respondent had participated in the arbitration and by its communication dated 04.12.2015, had sought extension of time to file its statement of claim. | 1[ds]17. The fact that the named arbitrator happens to be an employee of one of the parties to the Arbitration Agreement has not by itself, before the Amendment Act came into force, rendered such appointment invalid andthe present case, the Arbitrator undoubtedly is an employee of the Appellant but so long as there is no justifiable apprehension about his independence or impartiality, the appointment could not be rendered invalid andfacts on record and the hierarchy as mentioned do not show that the Arbitrator in the present matter was either the Dealing Authority in regard to the Contract or was directlysubordinate to theOfficer(s) whose decision is the subject matter of dispute. In fact, the decision, which could be subject matter of dispute, was that of his subordinates. He may have dealt with contracts of nature similar to the contract works in question but that by itself does not render the appointment invalid. Since there is nothing on record which could raise justifiable doubts about the independence or impartiality of the named Arbitrator, in the light of the observations of this Court in Indian Oil Corporation Ltd. (supra) the appointment of the Arbitrator could not in any way be termed to be illegal orcases referred to above show that once the conditions for exercise of jurisdiction under Section 11(6) were satisfied, in the exercise of consequential power under Section 11(8), the Court had on certain occasions gone beyond the scope of the concerned arbitration clauses and appointed independent arbitrators. What is clear is, for exercise of such power under Section 11(8), the case must first be made out for exercise of jurisdiction under Sectionis not the case of the Respondent that the provisions of Section 12 in unamended form stood violated on any count. In any case the provision contemplated clear and precise procedure under which the arbitrator could be challenged and the objections in that behalf under Section 13 could be raised within prescribed time and in accordance with the procedure detailed therein. The record shows that no such challenge was raised within the time and in terms of the procedure prescribed. As a matter of fact, the Respondent had participated in the arbitration and by its communication dated 04.12.2015, had sought extension of time to file its statement of claim. | 1 | 9,481 | 421 | ### 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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thus the Court would be within its powers to appoint such arbitrator(s) as may be permissible. Paragraph 18 sums up this aspect of the matter:-"18. Keeping in mind the afore-quoted recommendation of the Law Commission, with which spirit, Section 12 has been amended by the Amendment Act, 2015, it is manifest that the main purpose for amending the provision was to provide for neutrality of arbitrators. In order to achieve this, sub-section (5) of Section 12 lays down that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject-matter of the dispute falls under any of the categories specified in the Seventh Schedule, he shall be ineligible to be appointed as an arbitrator. In such an eventuality i.e. when the arbitration clause finds foul with the amended provisions extracted above, the appointment of an arbitrator would be beyond pale of the arbitration agreement, empowering the court to appoint such arbitrator(s) as may be permissible. That would be the effect of non obstante clause contained in sub-section (5) of Section 12 and the other party cannot insist on appointment of the arbitrator in terms of the arbitration agreement."21. Except the decision of this Court in Voestalpine Schienen GMBH (supra) referred to above, all other decisions arose out of matters where invocation of arbitration was before the Amendment Act came into force. Voestalpine Schienen GMBH (supra) was a case where the invocation was on 14.6.2016 i.e. after the Amendment Act and the observations in Para 18 clearly show that since "the arbitration clause finds foul with the amended provisions", the Court was empowered to appoint such arbitrator(s) as may be permissible. The ineligibility of the arbitrator was found in the context of amended Section 12 read with Seventh Schedule (which was brought in by Amendment Act) in a matter where invocation for arbitration was after the Amendment Act had come into force. It is thus clear that in pre-amendment cases, the law laid down in Northern Railway Administration (Supra), as followed in all the aforesaid cases, must be applied, in that the terms of the agreement ought to be adhered to and/or given effect to as closely as possible. Further, the jurisdiction of the Court under Section 11 of 1996 Act would arise only if the conditions specified in clauses (a), (b) and (c) are satisfied. The cases referred to above show that once the conditions for exercise of jurisdiction under Section 11(6) were satisfied, in the exercise of consequential power under Section 11(8), the Court had on certain occasions gone beyond the scope of the concerned arbitration clauses and appointed independent arbitrators. What is clear is, for exercise of such power under Section 11(8), the case must first be made out for exercise of jurisdiction under Section 11(6).22. The principles which emerge from the decisions referred to above are:-A. In cases governed by 1996 Act as it stood before the Amendment Act came into force:-(i) 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 or 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 to the officer whose decision is the subject-matter of the dispute.(ii) unless the cause of action for invoking jurisdiction under Clauses (a), (b) or (c) of sub-section (6) of Section 11 of 1996 Act arises, there is no question of the Chief Justice or his designate exercising power under sub-section (6) of Section 11.(iii) The Chief Justice or his designate while exercising power under sub-section (6) of Section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause.(iv) While exercising such power under sub section (6) of Section 11, If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else.B. In cases governed by 1996 Act after the Amendment Act has come into force:-If the arbitration clause finds foul with the amended provisions, the appointment of the Arbitrator even if apparently in conformity with the arbitration clause in the agreement, would be illegal and thus the Court would be within its powers to appoint such arbitrator(s) as may be permissible.23. The observations of the High Court in paragraphs 37-38 as quoted above show that the exercise was undertaken by the High Court, "in order to make neutrality or to avoid doubt in the mind of the petitioner" and ensure that justice must not only be done and must also be seen to be done. In effect, the High Court applied principles of neutrality and impartiality which have been expanded by way of Amendment Act, even when no cause of action for exercise of power under Section 11(6) had arisen. The procedure as laid down in unamended Section 12 mandated disclosure of circumstances likely to give rise to justifiable doubts as to independence and impartiality of the arbitrator. It is not the case of the Respondent that the provisions of Section 12 in unamended form stood violated on any count. In any case the provision contemplated clear and precise procedure under which the arbitrator could be challenged and the objections in that behalf under Section 13 could be raised within prescribed time and in accordance with the procedure detailed therein. The record shows that no such challenge was raised within the time and in terms of the procedure prescribed. As a matter of fact, the Respondent had participated in the arbitration and by its communication dated 04.12.2015, had sought extension of time to file its statement of claim.
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17. The fact that the named arbitrator happens to be an employee of one of the parties to the Arbitration Agreement has not by itself, before the Amendment Act came into force, rendered such appointment invalid andthe present case, the Arbitrator undoubtedly is an employee of the Appellant but so long as there is no justifiable apprehension about his independence or impartiality, the appointment could not be rendered invalid andfacts on record and the hierarchy as mentioned do not show that the Arbitrator in the present matter was either the Dealing Authority in regard to the Contract or was directlysubordinate to theOfficer(s) whose decision is the subject matter of dispute. In fact, the decision, which could be subject matter of dispute, was that of his subordinates. He may have dealt with contracts of nature similar to the contract works in question but that by itself does not render the appointment invalid. Since there is nothing on record which could raise justifiable doubts about the independence or impartiality of the named Arbitrator, in the light of the observations of this Court in Indian Oil Corporation Ltd. (supra) the appointment of the Arbitrator could not in any way be termed to be illegal orcases referred to above show that once the conditions for exercise of jurisdiction under Section 11(6) were satisfied, in the exercise of consequential power under Section 11(8), the Court had on certain occasions gone beyond the scope of the concerned arbitration clauses and appointed independent arbitrators. What is clear is, for exercise of such power under Section 11(8), the case must first be made out for exercise of jurisdiction under Sectionis not the case of the Respondent that the provisions of Section 12 in unamended form stood violated on any count. In any case the provision contemplated clear and precise procedure under which the arbitrator could be challenged and the objections in that behalf under Section 13 could be raised within prescribed time and in accordance with the procedure detailed therein. The record shows that no such challenge was raised within the time and in terms of the procedure prescribed. As a matter of fact, the Respondent had participated in the arbitration and by its communication dated 04.12.2015, had sought extension of time to file its statement of claim.
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ROHITH THAMMANA GOWDA Vs. STATE OF KARNATAKA & ORS | can be ascertained through interaction, but then, the question as to what would be the best interest of the child is a matter to be decided by the court taking into account all the relevant circumstances. A careful scrutiny of the impugned judgment would, however, reveal that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose. We will explain the raison detre for the said remark. 14. The High Court, after taking note of the various proceedings initiated by the appellant before the US Courts formed an opinion that he had initiated such proceedings only with an intention to enhance his chance of success in the Habeas Corpus Writ Petition and to pre-empt any move by the wife (respondent No.3) for custody by approaching the Indian Courts. In other words, the initiation of proceedings before the US Court was motivated and definitely not in good faith and was also not in the best interests of the son. In this context, it is relevant to note that US Court concerned had, admittedly, ordered for the return of the child and owing to the non-compliance with the said order initiated action for contempt. The spousal support order passed by the US Court was also suspended for the reason of non- compliance with the order for return of the child. When US Court was moved and the court had passed orders the above mentioned observation can only be regarded as one made at a premature stage and it was absolutely uncalled for and it virtually affected the process of consideration of the issue finally. When the US Court passed such orders and not orders on the custody of the child it ought not to have been taken as permission for respondent No.3 to keep the custody of the child. At any rate, after the order for return of the child and orders for contempt such a plea of the respondent No.3 ought not to have been entertained. 15. Considering the fact that the marriage between the appellant and respondent No.3 was conducted in Bengaluru in accordance with Hindu rites and ceremonies, the High Court held that the US Courts got no jurisdiction to entertain any dispute arising out of the marriage. This conclusion was arrived at without taking into account the efficacy of the order passed by the US Court. It was not strictly for the return of respondent No.3 but was an order intending to facilitate the return of a naturalised citizen of America holding an American Passport. Paragraph 85 of the impugned judgment would reveal that the High Court had enquired about the desire and comfort of the child with respect to his schooling and stay during the interaction. The court found that the child expressed no difficulty in his schooling or his stay in Bengaluru and ultimately satisfied that the child is comfortable and secure with staying with his mother. 16. The child in question is a boy, now around 11 years and a naturalised US citizen with an American passport and his parents viz., the appellant and respondent No.3 are holders of Permanent US Resident Cards. These aspects were not given due attention. So also, the fact that child in question was born in USA on 03.02.2011 and till the year 2020 he was living and studying there, was also not given due weight while considering question of welfare of the child. Merely because he was brought to India by the mother on 03.03.2020 and got him admitted in a school and that he is now feeling comfortable with schooling and stay in Bengaluru could not have been taken as factors for considering the welfare of the boy aged 11 years born and lived nearly for a decade in USA. The very fact that he is a naturalised citizen of US with American passport and on that account he might, in all probability, have good avenues and prospects in the country where he is a citizen. This crucial aspect has not been appreciated at all. In our view, taking into account the entire facts and circumstances and the environment in which the child had born and was brought up for about a decade coupled with the fact that he is a naturalised American citizen, his return to America would be in his best interest. In this case it is also to be noted that on two occasions American courts ordered to return the child to USA. True that the first order to that effect was vacated at the instance of respondent No.3. However, taking into account all aspects, we are of the view that it is not a fit case where courts in India should refuse to acknowledge the orders of the US Courts directing return of the minor child to the appellant keeping in view the best interests of the child. In our view, a consideration on the point of view of the welfare of the child would only support the order for the return of the child to his native country viz., USA. For, the child is a naturalised American citizen with American passport. He has been brought up in the social and culture value milieu of USA and, therefore, accustomed to the lifestyle, language, custom, rules and regulations of his native country viz., USA. Further, he will have better avenues and prospects if he returns to USA, being a naturalised American citizen. 17. In this case during the course of the arguments the learned counsel for the appellant on behalf of the appellant submitted that in case respondent No.3 wants to return and stay in US with her parents so as to have proximity to and opportunity to takecare of the child the appellant is prepared to do the needful, if the respondent No.3 so desires. It is further submitted that the appellant is also prepared to find suitable accommodation for them in that regard. | 1[ds]8. At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the question what is the wish/desire of the child is different and distinct from the question what would be in the best interest of the child. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to what would be in the best interest of the child is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, what would be the best interest of the child concerned. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits.9. To answer the stated question and also on the question of jurisdiction we do not think it necessary to conduct a deep survey on the authorities This Court in Nithya Anand Raghawan Vs. State (NCT of Delhi) & Anr. [(2017) 8 SCC 454] , reiterated the principle laid in V. Ravi Chandran Vs. Union of India [(2010) 1 SCC 174] and further held thus :-In exercise of summary jurisdiction, the court must be satisfied and of the opinion that the proceedings instituted before it was in close proximity and filed promptly after the child was removed from his/her native state and brought within its territorial jurisdiction, the child has not gained roots here and further that it will be in the childs welfare to return to his native state because of the difference in language spoken or social customs and contacts to which he/she has been accustomed or such other tangible reasons. In such a case the court need not resort to an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the foreign court by directing return of the child. Be it noted that in exceptional cases the court can still refuse to issue direction to return the child to the native state and more particularly in spite of a pre-existing order of the foreign court in that behalf, if it is satisfied that the childs return may expose him to a grave risk of harm.10. In Ravi Chandrans case (supra), this Court took note of the actual role of the High Courts in the matter of examination of cases involving claim of custody of a minor based on the principle of parens patriae jurisdiction considering the fact that it is the minor who is within the jurisdiction of the court. Based on such consideration it was held that even while considering Habeas Corpus writ petition qua a minor, in a given case, the High Courts may direct for return of the child or decline to change the custody of the child taking into account the attending facts and circumstances as also the settled legal position. In Nitya Anands case this Court had also referred to the decision in Dhanwanti Joshi Vs. Madhav Unde [(1998) 1 SCC 112] which in turn was rendered after referring to the decision of the Privy Council in Mckee Vs. Mckee [(1951) AC 352]. In Mckees case the Privy Council held that the order of the foreign court would yield to the welfare and that the comity of courts demanded not its enforcement, but its grave consideration. Though, India is not a signatory to Hague Convention of 1980, on the Civil Aspects of International Child Abduction, this Court, virtually, imbibing the true spirit of the principle of parens patriae jurisdiction, went on to hold in Nithya Anand Raghavans case thus:40. ... As regards the non-Convention countries, the law is that the court in the country to which the child has been removed must consider the question on merits bearing the welfare of the child as of paramount importance and reckon the order of the foreign court as only a factor to be taken into consideration, unless the court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare. In exercise of summary jurisdiction, the court must be satisfied and of the opinion that the proceeding instituted before it was in close proximity and filed promptly after the child was removed from his/her native state and brought within its territorial jurisdiction, the child has not gained roots here and further that it will be in the childs welfare to return to his native state because of the difference in language spoken or social customs and contacts to which he/she has been accustomed or such other tangible reasons. In such a case the court need not resort to an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the foreign court by directing return of the child. Be it noted that in exceptional cases the court can still refuse to issue direction to return the child to the native state and more particularly in spite of a pre-existing order of the foreign court in that behalf, if it is satisfied that the childs return may expose him to a grave risk of harm. This means that the courts in India, within whose jurisdiction the minor has been brought must ordinarily consider the question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the pre- existing order of the foreign court if any as only one of the factors and not get fixated therewith. In either situation – be it a summary inquiry or an elaborate inquiry – the welfare of the child is of paramount consideration. Thus, while examining the issue the courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature an objects to its return. We are in respectful agreement with the aforementioned exposition.This is because in this case foreign Court, as noted above, passed orders for the return of the child to USA. There is nothing on record to show that such an order passed on the second occasion was also vacated subsequently. True that the first order to that effect passed on 26.10.2020 was subsequently vacated at the instance of the third respondent on 30.10.2020. However, going by the records the subsequent order passed in March 2021 Superior Court of Washington, County of King for the return of the child owing to non-compliance led to further order for contempt on 29.4.2021. The High Court, obviously, observed that though the U.S Court subsequently suspended the order of spousal support did not pass any order regarding the custody of the child and hence, custody of the child is continuing with respondent No.3. We have referred to those aspects solely for the purpose of pointing out that the High Court was aware of the existence of order for the return of the child by the US Court.A scanning of the impugned judgment would reveal that the High Court had rightly identified the vital aspect that paramount consideration should be given to the welfare of the child while considering the matter.13. We have stated earlier that the question what is the wish/desire of the child can be ascertained through interaction, but then, the question as to what would be the best interest of the child is a matter to be decided by the court taking into account all the relevant circumstances. A careful scrutiny of the impugned judgment would, however, reveal that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose. We will explain the raison detre for the said remark.14. The High Court, after taking note of the various proceedings initiated by the appellant before the US Courts formed an opinion that he had initiated such proceedings only with an intention to enhance his chance of success in the Habeas Corpus Writ Petition and to pre-empt any move by the wife (respondent No.3) for custody by approaching the Indian Courts. In other words, the initiation of proceedings before the US Court was motivated and definitely not in good faith and was also not in the best interests of the son. In this context, it is relevant to note that US Court concerned had, admittedly, ordered for the return of the child and owing to the non-compliance with the said order initiated action for contempt. The spousal support order passed by the US Court was also suspended for the reason of non- compliance with the order for return of the child. When US Court was moved and the court had passed orders the above mentioned observation can only be regarded as one made at a premature stage and it was absolutely uncalled for and it virtually affected the process of consideration of the issue finally. When the US Court passed such orders and not orders on the custody of the child it ought not to have been taken as permission for respondent No.3 to keep the custody of the child. At any rate, after the order for return of the child and orders for contempt such a plea of the respondent No.3 ought not to have been entertained.15. Considering the fact that the marriage between the appellant and respondent No.3 was conducted in Bengaluru in accordance with Hindu rites and ceremonies, the High Court held that the US Courts got no jurisdiction to entertain any dispute arising out of the marriage. This conclusion was arrived at without taking into account the efficacy of the order passed by the US Court. It was not strictly for the return of respondent No.3 but was an order intending to facilitate the return of a naturalised citizen of America holding an American Passport. Paragraph 85 of the impugned judgment would reveal that the High Court had enquired about the desire and comfort of the child with respect to his schooling and stay during the interaction. The court found that the child expressed no difficulty in his schooling or his stay in Bengaluru and ultimately satisfied that the child is comfortable and secure with staying with his mother.16. The child in question is a boy, now around 11 years and a naturalised US citizen with an American passport and his parents viz., the appellant and respondent No.3 are holders of Permanent US Resident Cards. These aspects were not given due attention. So also, the fact that child in question was born in USA on 03.02.2011 and till the year 2020 he was living and studying there, was also not given due weight while considering question of welfare of the child. Merely because he was brought to India by the mother on 03.03.2020 and got him admitted in a school and that he is now feeling comfortable with schooling and stay in Bengaluru could not have been taken as factors for considering the welfare of the boy aged 11 years born and lived nearly for a decade in USA. The very fact that he is a naturalised citizen of US with American passport and on that account he might, in all probability, have good avenues and prospects in the country where he is a citizen. This crucial aspect has not been appreciated at all. In our view, taking into account the entire facts and circumstances and the environment in which the child had born and was brought up for about a decade coupled with the fact that he is a naturalised American citizen, his return to America would be in his best interest. In this case it is also to be noted that on two occasions American courts ordered to return the child to USA. True that the first order to that effect was vacated at the instance of respondent No.3. However, taking into account all aspects, we are of the view that it is not a fit case where courts in India should refuse to acknowledge the orders of the US Courts directing return of the minor child to the appellant keeping in view the best interests of the child. In our view, a consideration on the point of view of the welfare of the child would only support the order for the return of the child to his native country viz., USA. For, the child is a naturalised American citizen with American passport. He has been brought up in the social and culture value milieu of USA and, therefore, accustomed to the lifestyle, language, custom, rules and regulations of his native country viz., USA. Further, he will have better avenues and prospects if he returns to USA, being a naturalised American citizen.17. In this case during the course of the arguments the learned counsel for the appellant on behalf of the appellant submitted that in case respondent No.3 wants to return and stay in US with her parents so as to have proximity to and opportunity to takecare of the child the appellant is prepared to do the needful, if the respondent No.3 so desires. It is further submitted that the appellant is also prepared to find suitable accommodation for them in that regard. | 1 | 3,930 | 2,500 | ### 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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can be ascertained through interaction, but then, the question as to what would be the best interest of the child is a matter to be decided by the court taking into account all the relevant circumstances. A careful scrutiny of the impugned judgment would, however, reveal that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose. We will explain the raison detre for the said remark. 14. The High Court, after taking note of the various proceedings initiated by the appellant before the US Courts formed an opinion that he had initiated such proceedings only with an intention to enhance his chance of success in the Habeas Corpus Writ Petition and to pre-empt any move by the wife (respondent No.3) for custody by approaching the Indian Courts. In other words, the initiation of proceedings before the US Court was motivated and definitely not in good faith and was also not in the best interests of the son. In this context, it is relevant to note that US Court concerned had, admittedly, ordered for the return of the child and owing to the non-compliance with the said order initiated action for contempt. The spousal support order passed by the US Court was also suspended for the reason of non- compliance with the order for return of the child. When US Court was moved and the court had passed orders the above mentioned observation can only be regarded as one made at a premature stage and it was absolutely uncalled for and it virtually affected the process of consideration of the issue finally. When the US Court passed such orders and not orders on the custody of the child it ought not to have been taken as permission for respondent No.3 to keep the custody of the child. At any rate, after the order for return of the child and orders for contempt such a plea of the respondent No.3 ought not to have been entertained. 15. Considering the fact that the marriage between the appellant and respondent No.3 was conducted in Bengaluru in accordance with Hindu rites and ceremonies, the High Court held that the US Courts got no jurisdiction to entertain any dispute arising out of the marriage. This conclusion was arrived at without taking into account the efficacy of the order passed by the US Court. It was not strictly for the return of respondent No.3 but was an order intending to facilitate the return of a naturalised citizen of America holding an American Passport. Paragraph 85 of the impugned judgment would reveal that the High Court had enquired about the desire and comfort of the child with respect to his schooling and stay during the interaction. The court found that the child expressed no difficulty in his schooling or his stay in Bengaluru and ultimately satisfied that the child is comfortable and secure with staying with his mother. 16. The child in question is a boy, now around 11 years and a naturalised US citizen with an American passport and his parents viz., the appellant and respondent No.3 are holders of Permanent US Resident Cards. These aspects were not given due attention. So also, the fact that child in question was born in USA on 03.02.2011 and till the year 2020 he was living and studying there, was also not given due weight while considering question of welfare of the child. Merely because he was brought to India by the mother on 03.03.2020 and got him admitted in a school and that he is now feeling comfortable with schooling and stay in Bengaluru could not have been taken as factors for considering the welfare of the boy aged 11 years born and lived nearly for a decade in USA. The very fact that he is a naturalised citizen of US with American passport and on that account he might, in all probability, have good avenues and prospects in the country where he is a citizen. This crucial aspect has not been appreciated at all. In our view, taking into account the entire facts and circumstances and the environment in which the child had born and was brought up for about a decade coupled with the fact that he is a naturalised American citizen, his return to America would be in his best interest. In this case it is also to be noted that on two occasions American courts ordered to return the child to USA. True that the first order to that effect was vacated at the instance of respondent No.3. However, taking into account all aspects, we are of the view that it is not a fit case where courts in India should refuse to acknowledge the orders of the US Courts directing return of the minor child to the appellant keeping in view the best interests of the child. In our view, a consideration on the point of view of the welfare of the child would only support the order for the return of the child to his native country viz., USA. For, the child is a naturalised American citizen with American passport. He has been brought up in the social and culture value milieu of USA and, therefore, accustomed to the lifestyle, language, custom, rules and regulations of his native country viz., USA. Further, he will have better avenues and prospects if he returns to USA, being a naturalised American citizen. 17. In this case during the course of the arguments the learned counsel for the appellant on behalf of the appellant submitted that in case respondent No.3 wants to return and stay in US with her parents so as to have proximity to and opportunity to takecare of the child the appellant is prepared to do the needful, if the respondent No.3 so desires. It is further submitted that the appellant is also prepared to find suitable accommodation for them in that regard.
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wish/desire of the child can be ascertained through interaction, but then, the question as to what would be the best interest of the child is a matter to be decided by the court taking into account all the relevant circumstances. A careful scrutiny of the impugned judgment would, however, reveal that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose. We will explain the raison detre for the said remark.14. The High Court, after taking note of the various proceedings initiated by the appellant before the US Courts formed an opinion that he had initiated such proceedings only with an intention to enhance his chance of success in the Habeas Corpus Writ Petition and to pre-empt any move by the wife (respondent No.3) for custody by approaching the Indian Courts. In other words, the initiation of proceedings before the US Court was motivated and definitely not in good faith and was also not in the best interests of the son. In this context, it is relevant to note that US Court concerned had, admittedly, ordered for the return of the child and owing to the non-compliance with the said order initiated action for contempt. The spousal support order passed by the US Court was also suspended for the reason of non- compliance with the order for return of the child. When US Court was moved and the court had passed orders the above mentioned observation can only be regarded as one made at a premature stage and it was absolutely uncalled for and it virtually affected the process of consideration of the issue finally. When the US Court passed such orders and not orders on the custody of the child it ought not to have been taken as permission for respondent No.3 to keep the custody of the child. At any rate, after the order for return of the child and orders for contempt such a plea of the respondent No.3 ought not to have been entertained.15. Considering the fact that the marriage between the appellant and respondent No.3 was conducted in Bengaluru in accordance with Hindu rites and ceremonies, the High Court held that the US Courts got no jurisdiction to entertain any dispute arising out of the marriage. This conclusion was arrived at without taking into account the efficacy of the order passed by the US Court. It was not strictly for the return of respondent No.3 but was an order intending to facilitate the return of a naturalised citizen of America holding an American Passport. Paragraph 85 of the impugned judgment would reveal that the High Court had enquired about the desire and comfort of the child with respect to his schooling and stay during the interaction. The court found that the child expressed no difficulty in his schooling or his stay in Bengaluru and ultimately satisfied that the child is comfortable and secure with staying with his mother.16. The child in question is a boy, now around 11 years and a naturalised US citizen with an American passport and his parents viz., the appellant and respondent No.3 are holders of Permanent US Resident Cards. These aspects were not given due attention. So also, the fact that child in question was born in USA on 03.02.2011 and till the year 2020 he was living and studying there, was also not given due weight while considering question of welfare of the child. Merely because he was brought to India by the mother on 03.03.2020 and got him admitted in a school and that he is now feeling comfortable with schooling and stay in Bengaluru could not have been taken as factors for considering the welfare of the boy aged 11 years born and lived nearly for a decade in USA. The very fact that he is a naturalised citizen of US with American passport and on that account he might, in all probability, have good avenues and prospects in the country where he is a citizen. This crucial aspect has not been appreciated at all. In our view, taking into account the entire facts and circumstances and the environment in which the child had born and was brought up for about a decade coupled with the fact that he is a naturalised American citizen, his return to America would be in his best interest. In this case it is also to be noted that on two occasions American courts ordered to return the child to USA. True that the first order to that effect was vacated at the instance of respondent No.3. However, taking into account all aspects, we are of the view that it is not a fit case where courts in India should refuse to acknowledge the orders of the US Courts directing return of the minor child to the appellant keeping in view the best interests of the child. In our view, a consideration on the point of view of the welfare of the child would only support the order for the return of the child to his native country viz., USA. For, the child is a naturalised American citizen with American passport. He has been brought up in the social and culture value milieu of USA and, therefore, accustomed to the lifestyle, language, custom, rules and regulations of his native country viz., USA. Further, he will have better avenues and prospects if he returns to USA, being a naturalised American citizen.17. In this case during the course of the arguments the learned counsel for the appellant on behalf of the appellant submitted that in case respondent No.3 wants to return and stay in US with her parents so as to have proximity to and opportunity to takecare of the child the appellant is prepared to do the needful, if the respondent No.3 so desires. It is further submitted that the appellant is also prepared to find suitable accommodation for them in that regard.
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Gurbax Rai and Others Vs. Punjab National Bank, New Delhi | figure of the decretal amount the trial court took notice of the fact that in the suit filed by the Bank against the firm there were specific issues being issues Nos. 8, 9 and 10 about the liability of the Bank to account for the pledged goods and to give credit for the amount received from the insurer and the findings inter partes on these issues are res judicata. 6. The Bank preferred F. A. No. 190 of 1965 against the decree by the trial court in favour of the firm. This first appeal came up for hearing before a learned single Judge of Punjab and Haryana High Court who held that the pledged goods were lost or destroyed on account of the negligence of the pledgee and the Bank cannot be absolved from accounting for the value of the pledged goods to the pledger i.e. the firm and agreed with the trial court that findings on these issues, are res judicata inter partes. The learned Judge further held that the firm was entitled to recover the amount recovered by the Bank from the insurer in respect of the pledged goods as the Bank had not given credit or adjustment of the same in the cash credit account. Accordingly, the decree passed by the trial court was confirmed and the appeal preferred by the Bank was dismissed with costs. 7. The Bank preferred Letters Patent Appeal No. 165 of 1978. A Division Bench of the High Court held that the firm in its plaint had not claimed the amount of Rs. 59, 570/2/- on the allegation that the same was recovered by the Bank from the insurer. It was further held that the fire in which the pledged goods were alleged to have been destroyed, took place after September 6, 1947 and the amount must have been received thereafter and therefore, claim of Rs. 3, 90, 936/- upheld in favour of the Bank takes care of the burnt pledged goods also and therefore the firm is not entitled to adjustment. Accordingly, the Letters Patent Appeal was allowed and the claim for adjustment of Rs. 59, 570/2/- given in favour of the firm was set aside. Hence this appeal by special leave. 8. The recital of the pleadings and the findings recorded on the relevant point would focus the attention on the only question raised in this appeal by special leave. It is whether the firm was entitled to credit for Rs. 59, 570/2/- which was received by the Bank from the insurer in respect of pledged goods. It is not in dispute and it was clearly admitted by Mr. G. L. Sanghi, learned counsel appearing for the respondent that the fire took place prior to September 6, 1947 and the finding in the Letters Patent Appeal on that point is clearly unsustainable. It is not disputed that the pledged goods were destroyed in fire. It was conceded that the pledged goods were insured. It was admitted that the Bank as the pledgee of the pledged goods received an amount of Rs. 59, 570/2/- from the insurer. Ordinarily, this would tentamount to payment of the same amount in cash credit account. The pledged goods were of the firm. They could have been sold and the amount recovered and if so credit would have to be given in the account for the same. If they were destroyed in fire and the amount was recovered from the insurer which would be substitution of the pledged goods and to that extent it would be payment in the cash credit account. This was not even questioned. 9. It also appears that the Bank has not given credit for the aforementioned amount in the cash credit account. Therefore, there was no. question of the amount of Rs. 3, 90, 936/- taking care of the amount of Rs. 59, 570/2/- though the amount was already recovered by the Bank. 10. While granting special leave in this case, we called upon the Bank to produce its books of accounts relevant to the cash credit account to show whether it has given credit to the firm in its cash credit account while claiming on September 6, 1947 Rs. 3, 90, 936/-. There was visible disinclination to file an affidavit and it was not filed. Ultimately at the hearing of the appeal, it was conceded that this amount of Rs. 59, 570/2/- was adjusted not in the cash credit account of the firm but it was used to wipe out the personal liabilities of some other partners. This truth was revealed in the course of the hearing. 11. The question is : is it open to the Bank which held pledged goods against the cash credit facility to adjust the amount recovered from the pledged goods for wiping out separate dues of the individual partners? The goods were of the firm. They were not the goods a the partners. The goods were not offered as security for the individual debt of the partners. The goods were pledged against cash credit facility of the firm. Therefore, when the amount on account of the destruction of the pledged goods of the firm was recovered from the insurer, it must be given credit only in the cash credit account and to that extent the liability in the cash credit account would be reduced. That having not been done the Letters Patent Appeal Bench was clearly in error in setting aside the finding of the trial court. 12. Further the High Court completely overlooked the fact that in the suit filed by the Bank the firm had contended that it was entitled to the adjustment of the amount received by the Bank from the insurer. This claim was put in issue and decided in favour of the firm. The finding inter partes became res judicata and it was so held by the learned single Judge and the trial court. The Division Bench overlooked this well-established legal position and erred in reversing the concurrent findings. | 1[ds]9. It also appears that the Bank has not given credit for the aforementioned amount in the cash credit account. Therefore, there was no. question of the amount of Rs. 3, 90, 936/taking care of the amount of Rs. 59, 570/2/though the amount was already recovered by the Bank10. While granting special leave in this case, we called upon the Bank to produce its books of accounts relevant to the cash credit account to show whether it has given credit to the firm in its cash credit account while claiming on September 6, 1947 Rs. 3, 90,. There was visible disinclination to file an affidavit and it was not filed. Ultimately at the hearing of the appeal, it was conceded that this amount of Rs. 59, 570/2/was adjusted not in the cash credit account of the firm but it was used to wipe out the personal liabilities of some other partners. This truth was revealed in the course of the hearingThe goods were of the firm. They were not the goods a the partners. The goods were not offered as security for the individual debt of the partners. The goods were pledged against cash credit facility of the firm. Therefore, when the amount on account of the destruction of the pledged goods of the firm was recovered from the insurer, it must be given credit only in the cash credit account and to that extent the liability in the cash credit account would be reduced. That having not been done the Letters Patent Appeal Bench was clearly in error in setting aside the finding of the trial court12. Further the High Court completely overlooked the fact that in the suit filed by the Bank the firm had contended that it was entitled to the adjustment of the amount received by the Bank from the insurer. This claim was put in issue and decided in favour of the firm. The finding inter partes became res judicata and it was so held by the learned single Judge and the trial court. The Division Bench overlooked thisd legal position and erred in reversing the concurrent findings. | 1 | 1,580 | 390 | ### 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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figure of the decretal amount the trial court took notice of the fact that in the suit filed by the Bank against the firm there were specific issues being issues Nos. 8, 9 and 10 about the liability of the Bank to account for the pledged goods and to give credit for the amount received from the insurer and the findings inter partes on these issues are res judicata. 6. The Bank preferred F. A. No. 190 of 1965 against the decree by the trial court in favour of the firm. This first appeal came up for hearing before a learned single Judge of Punjab and Haryana High Court who held that the pledged goods were lost or destroyed on account of the negligence of the pledgee and the Bank cannot be absolved from accounting for the value of the pledged goods to the pledger i.e. the firm and agreed with the trial court that findings on these issues, are res judicata inter partes. The learned Judge further held that the firm was entitled to recover the amount recovered by the Bank from the insurer in respect of the pledged goods as the Bank had not given credit or adjustment of the same in the cash credit account. Accordingly, the decree passed by the trial court was confirmed and the appeal preferred by the Bank was dismissed with costs. 7. The Bank preferred Letters Patent Appeal No. 165 of 1978. A Division Bench of the High Court held that the firm in its plaint had not claimed the amount of Rs. 59, 570/2/- on the allegation that the same was recovered by the Bank from the insurer. It was further held that the fire in which the pledged goods were alleged to have been destroyed, took place after September 6, 1947 and the amount must have been received thereafter and therefore, claim of Rs. 3, 90, 936/- upheld in favour of the Bank takes care of the burnt pledged goods also and therefore the firm is not entitled to adjustment. Accordingly, the Letters Patent Appeal was allowed and the claim for adjustment of Rs. 59, 570/2/- given in favour of the firm was set aside. Hence this appeal by special leave. 8. The recital of the pleadings and the findings recorded on the relevant point would focus the attention on the only question raised in this appeal by special leave. It is whether the firm was entitled to credit for Rs. 59, 570/2/- which was received by the Bank from the insurer in respect of pledged goods. It is not in dispute and it was clearly admitted by Mr. G. L. Sanghi, learned counsel appearing for the respondent that the fire took place prior to September 6, 1947 and the finding in the Letters Patent Appeal on that point is clearly unsustainable. It is not disputed that the pledged goods were destroyed in fire. It was conceded that the pledged goods were insured. It was admitted that the Bank as the pledgee of the pledged goods received an amount of Rs. 59, 570/2/- from the insurer. Ordinarily, this would tentamount to payment of the same amount in cash credit account. The pledged goods were of the firm. They could have been sold and the amount recovered and if so credit would have to be given in the account for the same. If they were destroyed in fire and the amount was recovered from the insurer which would be substitution of the pledged goods and to that extent it would be payment in the cash credit account. This was not even questioned. 9. It also appears that the Bank has not given credit for the aforementioned amount in the cash credit account. Therefore, there was no. question of the amount of Rs. 3, 90, 936/- taking care of the amount of Rs. 59, 570/2/- though the amount was already recovered by the Bank. 10. While granting special leave in this case, we called upon the Bank to produce its books of accounts relevant to the cash credit account to show whether it has given credit to the firm in its cash credit account while claiming on September 6, 1947 Rs. 3, 90, 936/-. There was visible disinclination to file an affidavit and it was not filed. Ultimately at the hearing of the appeal, it was conceded that this amount of Rs. 59, 570/2/- was adjusted not in the cash credit account of the firm but it was used to wipe out the personal liabilities of some other partners. This truth was revealed in the course of the hearing. 11. The question is : is it open to the Bank which held pledged goods against the cash credit facility to adjust the amount recovered from the pledged goods for wiping out separate dues of the individual partners? The goods were of the firm. They were not the goods a the partners. The goods were not offered as security for the individual debt of the partners. The goods were pledged against cash credit facility of the firm. Therefore, when the amount on account of the destruction of the pledged goods of the firm was recovered from the insurer, it must be given credit only in the cash credit account and to that extent the liability in the cash credit account would be reduced. That having not been done the Letters Patent Appeal Bench was clearly in error in setting aside the finding of the trial court. 12. Further the High Court completely overlooked the fact that in the suit filed by the Bank the firm had contended that it was entitled to the adjustment of the amount received by the Bank from the insurer. This claim was put in issue and decided in favour of the firm. The finding inter partes became res judicata and it was so held by the learned single Judge and the trial court. The Division Bench overlooked this well-established legal position and erred in reversing the concurrent findings.
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9. It also appears that the Bank has not given credit for the aforementioned amount in the cash credit account. Therefore, there was no. question of the amount of Rs. 3, 90, 936/taking care of the amount of Rs. 59, 570/2/though the amount was already recovered by the Bank10. While granting special leave in this case, we called upon the Bank to produce its books of accounts relevant to the cash credit account to show whether it has given credit to the firm in its cash credit account while claiming on September 6, 1947 Rs. 3, 90,. There was visible disinclination to file an affidavit and it was not filed. Ultimately at the hearing of the appeal, it was conceded that this amount of Rs. 59, 570/2/was adjusted not in the cash credit account of the firm but it was used to wipe out the personal liabilities of some other partners. This truth was revealed in the course of the hearingThe goods were of the firm. They were not the goods a the partners. The goods were not offered as security for the individual debt of the partners. The goods were pledged against cash credit facility of the firm. Therefore, when the amount on account of the destruction of the pledged goods of the firm was recovered from the insurer, it must be given credit only in the cash credit account and to that extent the liability in the cash credit account would be reduced. That having not been done the Letters Patent Appeal Bench was clearly in error in setting aside the finding of the trial court12. Further the High Court completely overlooked the fact that in the suit filed by the Bank the firm had contended that it was entitled to the adjustment of the amount received by the Bank from the insurer. This claim was put in issue and decided in favour of the firm. The finding inter partes became res judicata and it was so held by the learned single Judge and the trial court. The Division Bench overlooked thisd legal position and erred in reversing the concurrent findings.
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M/s. Prestolite (India) Limited Vs. Regional Director and Another | stated to have been taken into consideration by the Regional Director and the same was dismissed by making the order to the following effect"I have applied my mind to all the relevant facts and have gone into the reasons stated by the employer. My findings on each of the contentions of the establishment are as underThe reasons advanced are not legally tenable. Opportunity of personal hearing afforded on November 22, 1979 has not been availed of." * 3. Mr. Mehta learned counsel appearing for the appellant has contended before us that although in the written representation various reasons were indicated by the appellant as to why the payment could not be made within the time-frame, such written representation had not been taken into consideration by adverting to the grounds indicated in the representation by the Regional Director who passed the impugned order mechanically holding that the reasons were not legally tenable. He has submitted that the Regional Director being quasi-judicial authority was required to dispose of the objection or the representation made by the appellant by applying his mind to the facts and circumstances of the case and by clearly indicating why the objections were not tenable for basing his decision. But unfortunately, no reason was indicated by the Regional Director in support of the conclusion that the reasons were not legally tenable. It is quite apparent from the order of the Regional Director that there was total non-application of mind in discharging quasi-judicial duties and functions. In this connection, reference was made by the learned counsel to the decision of this Court made in Organo Chemical Industries v. Union of India. In the said decision, power under Section 14-B of the Employees Provident Funds & Miscellaneous Provisions Act, was taken into consideration. On the question of reasoned order to be made by the adjudicating authority, this Court has referred to an earlier decision of this Court in Siemens case by quoting the observations made therein to the following effect : (SCC p. 986, para 6) "It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N. M. Desai v. Testeels Ltd."; * Mr. Mehta has submitted that unfortunately the High Court having upheld the validity of Section 85-B of the Act, in the said reference, summarily dismissed the appeal of the petitioner without considering the merits of the case. Mr. Mehta has contended that even if it is assumed that imposition of damages can also be made in a case where the payment has been made beyond the statutory time, the imposition of damages was required to be quantified by the adjudicating authority after considering the objection or representation made by the employer in the case. In the instant case neither the tribunal nor the High Court considered the grounds for delayed payment in basing the impugned orders. It has also not been indicated in the impugned decisions as to why imposition of damages at the rates determined by the adjudicating authority was just and proper. The orders impugned in this appeal therefore should be set aside 4. Mr. Goswami, learned counsel for the respondents has, however submitted that it would have been appropriate if the Regional Director had given reasons in some detail for disposing of the show-cause proceeding. But in the facts and circumstances of the case, the adjudication made by the Director was quite just and fair and on the face of the representation no other order was warranted. Since no injustice has been made to the appellant, for the mere technicality that the adjudicating authority has not indicated detailed reasons for its finding the impugned orders should not be set aside. He has also contended that specific case of prejudice suffered on account of impugned adjudication had not been raised in the application under Section 75 of the Act and it also does not appear that before the High Court such contentions were specifically raised. Hence, the appellant should not be permitted to raise such contentions at the time of hearing of this appeal. Mr Goswami has submitted that the grounds taken in the written representation were vague and the appellant was given the opportunity of personal hearing but such opportunity was not availed of and no material was produced before the adjudicating authority to substantiate the grounds made in the representation for delayed payment. Accordingly, the Regional Director had rightly rejected the representation by holding that the reasons advanced were not legally tenable. Mr Goswami has also submitted that under the Employees State Insurance General Regulations guidelines have been indicated as to how damages for delayed payment are to be imposed since such guidelines have been followed, no exception should be made to the impugned adjudication5. It however appears to us that the contention of Mr Goswami in the facts of the case should not be accepted. Even if the regulations have prescribed general guidelines and the upper limits at which the imposition of damages can be made it cannot be contended that in no case, the mitigating circumstances can be taken into consideration by the adjudicating authority in finally deciding the matter and it is bound to act mechanically in applying the uppermost limit of the table. In the instant case, it appears to us that the order has been passed without indicating any reason whatsoever as to why grounds for delayed payment were not to be accepted. There is no indication as to why the imposition of damages at the rate specified in the order was required to be made. Simply because the appellant did not appear in person and produce materials to support the objections, the employees case could not be discarded in limine. On the contrary, the objection ought to have been considered on merits. | 1[ds]5. It however appears to us that the contention of Mr Goswami in the facts of the case should not be accepted. Even if the regulations have prescribed general guidelines and the upper limits at which the imposition of damages can be made it cannot be contended that in no case, the mitigating circumstances can be taken into consideration by the adjudicating authority in finally deciding the matter and it is bound to act mechanically in applying the uppermost limit of the table. In the instant case, it appears to us that the order has been passed without indicating any reason whatsoever as to why grounds for delayed payment were not to be accepted. There is no indication as to why the imposition of damages at the rate specified in the order was required to be made. Simply because the appellant did not appear in person and produce materials to support the objections, the employees case could not be discarded in limine. On the contrary, the objection ought to have been considered on merits. | 1 | 1,465 | 190 | ### 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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stated to have been taken into consideration by the Regional Director and the same was dismissed by making the order to the following effect"I have applied my mind to all the relevant facts and have gone into the reasons stated by the employer. My findings on each of the contentions of the establishment are as underThe reasons advanced are not legally tenable. Opportunity of personal hearing afforded on November 22, 1979 has not been availed of." * 3. Mr. Mehta learned counsel appearing for the appellant has contended before us that although in the written representation various reasons were indicated by the appellant as to why the payment could not be made within the time-frame, such written representation had not been taken into consideration by adverting to the grounds indicated in the representation by the Regional Director who passed the impugned order mechanically holding that the reasons were not legally tenable. He has submitted that the Regional Director being quasi-judicial authority was required to dispose of the objection or the representation made by the appellant by applying his mind to the facts and circumstances of the case and by clearly indicating why the objections were not tenable for basing his decision. But unfortunately, no reason was indicated by the Regional Director in support of the conclusion that the reasons were not legally tenable. It is quite apparent from the order of the Regional Director that there was total non-application of mind in discharging quasi-judicial duties and functions. In this connection, reference was made by the learned counsel to the decision of this Court made in Organo Chemical Industries v. Union of India. In the said decision, power under Section 14-B of the Employees Provident Funds & Miscellaneous Provisions Act, was taken into consideration. On the question of reasoned order to be made by the adjudicating authority, this Court has referred to an earlier decision of this Court in Siemens case by quoting the observations made therein to the following effect : (SCC p. 986, para 6) "It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N. M. Desai v. Testeels Ltd."; * Mr. Mehta has submitted that unfortunately the High Court having upheld the validity of Section 85-B of the Act, in the said reference, summarily dismissed the appeal of the petitioner without considering the merits of the case. Mr. Mehta has contended that even if it is assumed that imposition of damages can also be made in a case where the payment has been made beyond the statutory time, the imposition of damages was required to be quantified by the adjudicating authority after considering the objection or representation made by the employer in the case. In the instant case neither the tribunal nor the High Court considered the grounds for delayed payment in basing the impugned orders. It has also not been indicated in the impugned decisions as to why imposition of damages at the rates determined by the adjudicating authority was just and proper. The orders impugned in this appeal therefore should be set aside 4. Mr. Goswami, learned counsel for the respondents has, however submitted that it would have been appropriate if the Regional Director had given reasons in some detail for disposing of the show-cause proceeding. But in the facts and circumstances of the case, the adjudication made by the Director was quite just and fair and on the face of the representation no other order was warranted. Since no injustice has been made to the appellant, for the mere technicality that the adjudicating authority has not indicated detailed reasons for its finding the impugned orders should not be set aside. He has also contended that specific case of prejudice suffered on account of impugned adjudication had not been raised in the application under Section 75 of the Act and it also does not appear that before the High Court such contentions were specifically raised. Hence, the appellant should not be permitted to raise such contentions at the time of hearing of this appeal. Mr Goswami has submitted that the grounds taken in the written representation were vague and the appellant was given the opportunity of personal hearing but such opportunity was not availed of and no material was produced before the adjudicating authority to substantiate the grounds made in the representation for delayed payment. Accordingly, the Regional Director had rightly rejected the representation by holding that the reasons advanced were not legally tenable. Mr Goswami has also submitted that under the Employees State Insurance General Regulations guidelines have been indicated as to how damages for delayed payment are to be imposed since such guidelines have been followed, no exception should be made to the impugned adjudication5. It however appears to us that the contention of Mr Goswami in the facts of the case should not be accepted. Even if the regulations have prescribed general guidelines and the upper limits at which the imposition of damages can be made it cannot be contended that in no case, the mitigating circumstances can be taken into consideration by the adjudicating authority in finally deciding the matter and it is bound to act mechanically in applying the uppermost limit of the table. In the instant case, it appears to us that the order has been passed without indicating any reason whatsoever as to why grounds for delayed payment were not to be accepted. There is no indication as to why the imposition of damages at the rate specified in the order was required to be made. Simply because the appellant did not appear in person and produce materials to support the objections, the employees case could not be discarded in limine. On the contrary, the objection ought to have been considered on merits.
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5. It however appears to us that the contention of Mr Goswami in the facts of the case should not be accepted. Even if the regulations have prescribed general guidelines and the upper limits at which the imposition of damages can be made it cannot be contended that in no case, the mitigating circumstances can be taken into consideration by the adjudicating authority in finally deciding the matter and it is bound to act mechanically in applying the uppermost limit of the table. In the instant case, it appears to us that the order has been passed without indicating any reason whatsoever as to why grounds for delayed payment were not to be accepted. There is no indication as to why the imposition of damages at the rate specified in the order was required to be made. Simply because the appellant did not appear in person and produce materials to support the objections, the employees case could not be discarded in limine. On the contrary, the objection ought to have been considered on merits.
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Commissioner of Income Tax, Madras Vs. S. Nelliappan (Deceased By His Legal Representatives) | and lorry cases could not be said to be excessive or unreasonable ". The Tribunal declined to deal with the contentions raised in the appeal about the individual items since in their view those contentions had " a direct bearing on this final quantum " and the assessees had failed to discharge " the primary onus " on them " to show that the overall quantum is excessive ". The Tribunal submitted a statement of the case under section 66(2) of the Indian Income-tax Act to the High Court of Madras and referred the question whether the Tribunal was justified in estimating the income of the assessees and refusing to consider the contentions put forward by them. The High Court held that the Tribunal was bound to determine whether the purchase price of charcoal and the estimate of gross receipts by the Appellate Assistant Commissioner were excessive, and that the Tribunal should, instead of determining whether the gross amount of the estimated income was excessive, have determined the contention raised by the assessees individually. Counsel for the assessees urged before the High Court that when specific additions were made in the total profits on the grounds of " suppressed income and inflated expenditure " the Appellate Assistant Commissioner could not add other items under the head " Unexplained cash credits ". The High Court declined to pronounce their opinion on that contention, and observed that it would be open to the Tribunal to consider that contention in deciding what should be the ultimate estimate of additions to be made to the disclosed income of the assessees in the relevant years. The High Court answered the question referred in favour of the assessees and observed that the " appeals will have to be disposed of afresh and in accordance with the law by the Tribunal " At the hearing before the Tribunal pursuant to the order of the High Court, counsel for the assessees abandoned the contentions " relating to the amount adjusted in the computation of profits under the heads of operating expenses and additions for low collections and urged that cash credit of Rs. 19, 796 for the assessment year 1946-47 and Rs. 32, 700 for the assessment year 1947-48 should be deleted. The members of the Tribunal held that they had examined the ledger accounts of the assessees and that the credits remaining outstanding till the end of the previous year relating to the assessment year 1947-48 and the explanation furnished by the assessees was unconvincing, and that the cash credits deserved to be treated as the income of the assessees in the respective years in which they had been brought into the books of the business in fictitious names. But, the Tribunal observed, since in each of the two years under appeal additions to the book profits had been accepted in excess of the amounts of cash credits " additions of these credits had become redundant ", and should be deleted, and the assessing officer should amend the assessments and adjust the tax liability. The Commissioner of Income-tax thereafter applied to the Tribunal to state a case on the following two questions for the year 1946-47" (i) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the addition to the extent of Rs. 19, 796 in the assessment ? "" (ii) Whether the Tribunal is right in law in making out a new case for the assessee inconsistent with the assessees own plea and interfering with the assessment ? "2. In respect of the year 1947-48 the Commissioner applied for a reference on two similar questions, the amount of addition challenged by the first question being Rs. 32, 700. The Tribunal rejected the applications observing that the finding of the Tribunal was given on the directions of the High Court, and it was a finding on a question of fact and gave rise to no questions of law. Petitions under section 66(2) of the Income-tax Act by the Commissioner to the High Court of Madras were also dismissed. The Commissioner has appealed to this court. In hearing an appeal the Tribunal may give leave to the assessee to urge grounds not set forth in the memorandum of appeal, and in deciding the appeal the Tribunal is not restricted to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal. The Tribunal was, therefore, competent to allow the assessees to raise the contention relating to the cash credits which was not made the subject-matter of a ground in the memorandum of appeal. It cannot be said that in accepting the contention of the assessees that the cash credits represented income from the business withheld from the books, the Tribunal made out a new case inconsistent with the assessees own plea. In any event the Tribunal is not precluded from adjusting the tax liability of the assessee in the light of its findings merely because the findings are inconsistent with the case pleaded by the assesseesThe first question raised in the application for reference is a question of fact. It is true that there is no direct evidence of any connection between the cash credit entries and the income withheld from the books of account by the assessees. But if the Tribunal inferred that there was a connection between the profits withheld from the books and the cash credit entries, it cannot be said that the conclusion is based upon speculation. The first question sought to be raised is, therefore, purely one of fact and could not be referred under section 66.3. The real controversy as to the tax liability of the assessee is finally determined when the first question is not allowed to be raised. The second question may apparently be a question of law, but we do not see any reason why the Tribunal should be called upon to submit a statement of case on a question which has become academic | 0[ds]In hearing an appeal the Tribunal may give leave to the assessee to urge grounds not set forth in the memorandum of appeal, and in deciding the appeal the Tribunal is not restricted to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal. The Tribunal was, therefore, competent to allow the assessees to raise the contention relating to the cash credits which was not made theof a ground in the memorandum of appeal. It cannot be said that in accepting the contention of the assessees that the cash credits represented income from the business withheld from the books, the Tribunal made out a new case inconsistent with the assessees own plea. In any event the Tribunal is not precluded from adjusting the tax liability of the assessee in the light of its findings merely because the findings are inconsistent with the case pleaded by the assesseesThe first question raised in the application for reference is a question of fact. It is true that there is no direct evidence of any connection between the cash credit entries and the income withheld from the books of account by the assessees. But if the Tribunal inferred that there was a connection between the profits withheld from the books and the cash credit entries, it cannot be said that the conclusion is based upon speculation. The first question sought to be raised is, therefore, purely one of fact and could not be referred under section 66.3. The real controversy as to the tax liability of the assessee is finally determined when the first question is not allowed to be raised. The second question may apparently be a question of law, but we do not see any reason why the Tribunal should be called upon to submit a statement of case on a question which has become academic | 0 | 1,250 | 332 | ### 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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and lorry cases could not be said to be excessive or unreasonable ". The Tribunal declined to deal with the contentions raised in the appeal about the individual items since in their view those contentions had " a direct bearing on this final quantum " and the assessees had failed to discharge " the primary onus " on them " to show that the overall quantum is excessive ". The Tribunal submitted a statement of the case under section 66(2) of the Indian Income-tax Act to the High Court of Madras and referred the question whether the Tribunal was justified in estimating the income of the assessees and refusing to consider the contentions put forward by them. The High Court held that the Tribunal was bound to determine whether the purchase price of charcoal and the estimate of gross receipts by the Appellate Assistant Commissioner were excessive, and that the Tribunal should, instead of determining whether the gross amount of the estimated income was excessive, have determined the contention raised by the assessees individually. Counsel for the assessees urged before the High Court that when specific additions were made in the total profits on the grounds of " suppressed income and inflated expenditure " the Appellate Assistant Commissioner could not add other items under the head " Unexplained cash credits ". The High Court declined to pronounce their opinion on that contention, and observed that it would be open to the Tribunal to consider that contention in deciding what should be the ultimate estimate of additions to be made to the disclosed income of the assessees in the relevant years. The High Court answered the question referred in favour of the assessees and observed that the " appeals will have to be disposed of afresh and in accordance with the law by the Tribunal " At the hearing before the Tribunal pursuant to the order of the High Court, counsel for the assessees abandoned the contentions " relating to the amount adjusted in the computation of profits under the heads of operating expenses and additions for low collections and urged that cash credit of Rs. 19, 796 for the assessment year 1946-47 and Rs. 32, 700 for the assessment year 1947-48 should be deleted. The members of the Tribunal held that they had examined the ledger accounts of the assessees and that the credits remaining outstanding till the end of the previous year relating to the assessment year 1947-48 and the explanation furnished by the assessees was unconvincing, and that the cash credits deserved to be treated as the income of the assessees in the respective years in which they had been brought into the books of the business in fictitious names. But, the Tribunal observed, since in each of the two years under appeal additions to the book profits had been accepted in excess of the amounts of cash credits " additions of these credits had become redundant ", and should be deleted, and the assessing officer should amend the assessments and adjust the tax liability. The Commissioner of Income-tax thereafter applied to the Tribunal to state a case on the following two questions for the year 1946-47" (i) Whether on the facts and in the circumstances of the case, the Tribunal was right in law in deleting the addition to the extent of Rs. 19, 796 in the assessment ? "" (ii) Whether the Tribunal is right in law in making out a new case for the assessee inconsistent with the assessees own plea and interfering with the assessment ? "2. In respect of the year 1947-48 the Commissioner applied for a reference on two similar questions, the amount of addition challenged by the first question being Rs. 32, 700. The Tribunal rejected the applications observing that the finding of the Tribunal was given on the directions of the High Court, and it was a finding on a question of fact and gave rise to no questions of law. Petitions under section 66(2) of the Income-tax Act by the Commissioner to the High Court of Madras were also dismissed. The Commissioner has appealed to this court. In hearing an appeal the Tribunal may give leave to the assessee to urge grounds not set forth in the memorandum of appeal, and in deciding the appeal the Tribunal is not restricted to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal. The Tribunal was, therefore, competent to allow the assessees to raise the contention relating to the cash credits which was not made the subject-matter of a ground in the memorandum of appeal. It cannot be said that in accepting the contention of the assessees that the cash credits represented income from the business withheld from the books, the Tribunal made out a new case inconsistent with the assessees own plea. In any event the Tribunal is not precluded from adjusting the tax liability of the assessee in the light of its findings merely because the findings are inconsistent with the case pleaded by the assesseesThe first question raised in the application for reference is a question of fact. It is true that there is no direct evidence of any connection between the cash credit entries and the income withheld from the books of account by the assessees. But if the Tribunal inferred that there was a connection between the profits withheld from the books and the cash credit entries, it cannot be said that the conclusion is based upon speculation. The first question sought to be raised is, therefore, purely one of fact and could not be referred under section 66.3. The real controversy as to the tax liability of the assessee is finally determined when the first question is not allowed to be raised. The second question may apparently be a question of law, but we do not see any reason why the Tribunal should be called upon to submit a statement of case on a question which has become academic
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In hearing an appeal the Tribunal may give leave to the assessee to urge grounds not set forth in the memorandum of appeal, and in deciding the appeal the Tribunal is not restricted to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal. The Tribunal was, therefore, competent to allow the assessees to raise the contention relating to the cash credits which was not made theof a ground in the memorandum of appeal. It cannot be said that in accepting the contention of the assessees that the cash credits represented income from the business withheld from the books, the Tribunal made out a new case inconsistent with the assessees own plea. In any event the Tribunal is not precluded from adjusting the tax liability of the assessee in the light of its findings merely because the findings are inconsistent with the case pleaded by the assesseesThe first question raised in the application for reference is a question of fact. It is true that there is no direct evidence of any connection between the cash credit entries and the income withheld from the books of account by the assessees. But if the Tribunal inferred that there was a connection between the profits withheld from the books and the cash credit entries, it cannot be said that the conclusion is based upon speculation. The first question sought to be raised is, therefore, purely one of fact and could not be referred under section 66.3. The real controversy as to the tax liability of the assessee is finally determined when the first question is not allowed to be raised. The second question may apparently be a question of law, but we do not see any reason why the Tribunal should be called upon to submit a statement of case on a question which has become academic
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SHAMSHER SINGH & ANR Vs. LT. COL. NAHAR SINGH (D) THR. LRS. & ORS | 97 of the Code and the other provisions in the said order, the aims and objects for introducing amendment to the Code cannot be lost sight of. Under the unamended Code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. The legislature purposely amended provisions in Order 21 to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. See Bhag Mal v. Ch. Parbhu Ram, (1985) 1 SCC 61. 28. In view of the discussion aforesaid, in our opinion, the executing court was well within law in recording evidence and adjudicating the claim of the third party. The executing court rightly rejected the preliminary objection to the maintainability of application of the objectors under Order 21 Rule 99 of the Code and decided the other issues on merits of their claims arising between the decreeholder and the objectors. 29. The High Court in appeal mainly concentrated its decision on the question of tenability of application under Order 21 Rule 99 at the instance of the objectors and having rejected the said application did not in detail deal with other issues on merits arising between the decree-holder and the objectors. The issues on merits which were liable to be re-examined by the appellate court, as the first court of facts and law, were: (1) Whether the decree-holder at the time of institution of suit had knowledge of the execution of the registered sale deeds in favour of the objectors and yet they deliberately avoided to make them as parties to the suit and thus obtained in collusion with the vendors an ex parte decree of specific performance of the contract. OR (2) Whether the objectors had full knowledge of existence of prior agreement of sale executed by the vendors in favour of the decree-holder and despite such knowledge they purchased the suit property to frustrate the agreement existing in favour of the decree-holder. 30. As the appellate court, having rejected the objectors application under Order 21 Rule 99, has not in greater detail gone into the contested issues on merits, it is necessary to set aside the impugned order of the High Court and remand the case to it for decision of the appeal afresh in accordance with law. 25. The above judgment of this court clearly lays down that all issues between the parties in application under Order XXI Rules 99, 100 and 101 need to be examined by trial court and decided. 26. The use of the words all questions (including the questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 ………… has to be given meaning and full play. It is also relevant to note that prior to Amendment, 1976, under Rule 103, the aggrieved party could have brought a suit for determination of rights between them but by Amendment, 1976, Rule 103 has been amended to the following effect:- 103. Orders to be treated as decrees.-- Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. 27. The purpose of amendment under Rule 103 is also that any adjudication made under Rule 101 shall have same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. When the respondent No.1 filed his application claiming to be put back into possession, it was obliged to establish its right, title or interest in the property without which his application could not have been allowed. The Executing Court has considered the application of respondent No.1 in right perspective and has clearly held that respondent No.1 failed to prove his title by adverse possession, hence application deserves to be rejected. 28. High Court committed error in observing that in application proceedings under Order XXI Rules 99, 100 and 101, the Court is not to decide such question. Without determination of right, title or interest, the application could not have been allowed. We having already extracted the observations of the High Court, where it clearly held that the title in respect of the property by way of adverse possession need not be gone into in the appeal before it. The above observation of the High Court was erroneous. In the proceeding under Order XXI Rules 99, 100 and 101, right, title or interest has to be determined and without establishing right, title or interest, the respondent No.1 cannot claim that he should be put back into possession. We do not accept the submission of the learned counsel for the respondent that on mere fact that respondent No.1 was in possession of the premises prior to being dispossessed, they should be put back into possession. For putting back into possession, the respondent No.1 was obliged to establish his title to the property by adverse possession, without which, he could not have asked the Court to put him back into possession. The High Court clearly erred in allowing the appeal and the Executing Court has rightly rejected the application filed by respondent No.1. We may further notice that suit No.211 of 1990 filed by respondent No.1 seeking declaration of title to the property by adverse possession has been subsequently dismissed by decree on 16.03.2009 and no steps have been taken for restoration of the suit. 29. We do not find any error in the order passed by the Executing Court and the High Court committed error in allowing the appeal, directing the respondent No.1 to be put back into possession. | 1[ds]7. There is no dispute between the parties that the premises in question was originally owned by one Tarapada Dutta.8. In the application, which was filed by respondent No.1 for putting him back into possession under Order XXI Rules 98, 99 and 100 CPC, the respondent No.1 has claimed his possession since 1965 after death of his father. The respondent No.1 in his application has also relied on filing of suit for declaration of his title being Suit No.211 of 1990. There is no dispute between the parties that in execution of decree of specific performance, the appellants were put in possession and respondent No.1 aggrieved by his dispossession had filed an application under Order XXI Rules 98, 99 and 10016. There is a marked difference between Rule 101 as it existed prior to amendment and as it now exists after 1976 amendment. Earlier a person who was a bona fide claimant and who satisfied that he was in possession of the property on his own account or on account of some other person then the judgment-debtor could have been put in possession of the property on an application under Rules 100 and 101, whereas now after the amendment for putting back into possession an applicant has not only to prove that he is in bona fide possession rather he has to prove his right, title or interest in the property. What was earlier to be adjudicated in a suit under unamended Rule 103 is now to be adjudicated in Rule 101 itself, thus, for being put in possession, an applicant has to prove his right, title or interest in the property and by simply proving that he was in possession prior to the date he was dispossessed by decree-holder, he is not entitled to be put back in possession.17. In view of the statutory scheme which is delineated by amended provisions of Rule 101, the submissions of the counsel of the respondent that by simply proving the fact that he was in possession prior to he being dispossessed by decree-holder, he should be put back in possession cannot be accepted. The respondent-applicant had to prove his right, title or interest in the property to be put back in possession20. Thus, the trial court returned categorical finding that appellant has failed to prove his right, title and interest and his application deserves to be rejected. The High Court in appeal filed by respondent No.1 without upsetting the finding of the Executing Court that respondent No.1 failed to prove his title by adverse possession allowed the appeal by making following observations:-Be that as it may, the question whether the appellant has obtained any title in respect of the suit property by way of adverse possession or not is not being decided by this Court and thus this Court is not going into the said question. But the fact remains that the appellant was very much in possession of the suit property when the respondent No.1 took delivery of possession of the suit property through the Courts bailiff without any proceeding being initiated against the appellant and without the appellant being served with any prior notice with regard to such delivery of possession…………..27. The purpose of amendment under Rule 103 is also that any adjudication made under Rule 101 shall have same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. When the respondent No.1 filed his application claiming to be put back into possession, it was obliged to establish its right, title or interest in the property without which his application could not have been allowed. The Executing Court has considered the application of respondent No.1 in right perspective and has clearly held that respondent No.1 failed to prove his title by adverse possession, hence application deserves to be rejected.28. High Court committed error in observing that in application proceedings under Order XXI Rules 99, 100 and 101, the Court is not to decide such question. Without determination of right, title or interest, the application could not have been allowed. We having already extracted the observations of the High Court, where it clearly held that the title in respect of the property by way of adverse possession need not be gone into in the appeal before it. The above observation of the High Court was erroneous. In the proceeding under Order XXI Rules 99, 100 and 101, right, title or interest has to be determined and without establishing right, title or interest, the respondent No.1 cannot claim that he should be put back into possession. We do not accept the submission of the learned counsel for the respondent that on mere fact that respondent No.1 was in possession of the premises prior to being dispossessed, they should be put back into possession. For putting back into possession, the respondent No.1 was obliged to establish his title to the property by adverse possession, without which, he could not have asked the Court to put him back into possession. The High Court clearly erred in allowing the appeal and the Executing Court has rightly rejected the application filed by respondent No.1. We may further notice that suit No.211 of 1990 filed by respondent No.1 seeking declaration of title to the property by adverse possession has been subsequently dismissed by decree on 16.03.2009 and no steps have been taken for restoration of the suit29. We do not find any error in the order passed by the Executing Court and the High Court committed error in allowing the appeal, directing the respondent No.1 to be put back into possession. | 1 | 6,706 | 1,033 | ### 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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97 of the Code and the other provisions in the said order, the aims and objects for introducing amendment to the Code cannot be lost sight of. Under the unamended Code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. The legislature purposely amended provisions in Order 21 to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. See Bhag Mal v. Ch. Parbhu Ram, (1985) 1 SCC 61. 28. In view of the discussion aforesaid, in our opinion, the executing court was well within law in recording evidence and adjudicating the claim of the third party. The executing court rightly rejected the preliminary objection to the maintainability of application of the objectors under Order 21 Rule 99 of the Code and decided the other issues on merits of their claims arising between the decreeholder and the objectors. 29. The High Court in appeal mainly concentrated its decision on the question of tenability of application under Order 21 Rule 99 at the instance of the objectors and having rejected the said application did not in detail deal with other issues on merits arising between the decree-holder and the objectors. The issues on merits which were liable to be re-examined by the appellate court, as the first court of facts and law, were: (1) Whether the decree-holder at the time of institution of suit had knowledge of the execution of the registered sale deeds in favour of the objectors and yet they deliberately avoided to make them as parties to the suit and thus obtained in collusion with the vendors an ex parte decree of specific performance of the contract. OR (2) Whether the objectors had full knowledge of existence of prior agreement of sale executed by the vendors in favour of the decree-holder and despite such knowledge they purchased the suit property to frustrate the agreement existing in favour of the decree-holder. 30. As the appellate court, having rejected the objectors application under Order 21 Rule 99, has not in greater detail gone into the contested issues on merits, it is necessary to set aside the impugned order of the High Court and remand the case to it for decision of the appeal afresh in accordance with law. 25. The above judgment of this court clearly lays down that all issues between the parties in application under Order XXI Rules 99, 100 and 101 need to be examined by trial court and decided. 26. The use of the words all questions (including the questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 ………… has to be given meaning and full play. It is also relevant to note that prior to Amendment, 1976, under Rule 103, the aggrieved party could have brought a suit for determination of rights between them but by Amendment, 1976, Rule 103 has been amended to the following effect:- 103. Orders to be treated as decrees.-- Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree. 27. The purpose of amendment under Rule 103 is also that any adjudication made under Rule 101 shall have same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. When the respondent No.1 filed his application claiming to be put back into possession, it was obliged to establish its right, title or interest in the property without which his application could not have been allowed. The Executing Court has considered the application of respondent No.1 in right perspective and has clearly held that respondent No.1 failed to prove his title by adverse possession, hence application deserves to be rejected. 28. High Court committed error in observing that in application proceedings under Order XXI Rules 99, 100 and 101, the Court is not to decide such question. Without determination of right, title or interest, the application could not have been allowed. We having already extracted the observations of the High Court, where it clearly held that the title in respect of the property by way of adverse possession need not be gone into in the appeal before it. The above observation of the High Court was erroneous. In the proceeding under Order XXI Rules 99, 100 and 101, right, title or interest has to be determined and without establishing right, title or interest, the respondent No.1 cannot claim that he should be put back into possession. We do not accept the submission of the learned counsel for the respondent that on mere fact that respondent No.1 was in possession of the premises prior to being dispossessed, they should be put back into possession. For putting back into possession, the respondent No.1 was obliged to establish his title to the property by adverse possession, without which, he could not have asked the Court to put him back into possession. The High Court clearly erred in allowing the appeal and the Executing Court has rightly rejected the application filed by respondent No.1. We may further notice that suit No.211 of 1990 filed by respondent No.1 seeking declaration of title to the property by adverse possession has been subsequently dismissed by decree on 16.03.2009 and no steps have been taken for restoration of the suit. 29. We do not find any error in the order passed by the Executing Court and the High Court committed error in allowing the appeal, directing the respondent No.1 to be put back into possession.
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7. There is no dispute between the parties that the premises in question was originally owned by one Tarapada Dutta.8. In the application, which was filed by respondent No.1 for putting him back into possession under Order XXI Rules 98, 99 and 100 CPC, the respondent No.1 has claimed his possession since 1965 after death of his father. The respondent No.1 in his application has also relied on filing of suit for declaration of his title being Suit No.211 of 1990. There is no dispute between the parties that in execution of decree of specific performance, the appellants were put in possession and respondent No.1 aggrieved by his dispossession had filed an application under Order XXI Rules 98, 99 and 10016. There is a marked difference between Rule 101 as it existed prior to amendment and as it now exists after 1976 amendment. Earlier a person who was a bona fide claimant and who satisfied that he was in possession of the property on his own account or on account of some other person then the judgment-debtor could have been put in possession of the property on an application under Rules 100 and 101, whereas now after the amendment for putting back into possession an applicant has not only to prove that he is in bona fide possession rather he has to prove his right, title or interest in the property. What was earlier to be adjudicated in a suit under unamended Rule 103 is now to be adjudicated in Rule 101 itself, thus, for being put in possession, an applicant has to prove his right, title or interest in the property and by simply proving that he was in possession prior to the date he was dispossessed by decree-holder, he is not entitled to be put back in possession.17. In view of the statutory scheme which is delineated by amended provisions of Rule 101, the submissions of the counsel of the respondent that by simply proving the fact that he was in possession prior to he being dispossessed by decree-holder, he should be put back in possession cannot be accepted. The respondent-applicant had to prove his right, title or interest in the property to be put back in possession20. Thus, the trial court returned categorical finding that appellant has failed to prove his right, title and interest and his application deserves to be rejected. The High Court in appeal filed by respondent No.1 without upsetting the finding of the Executing Court that respondent No.1 failed to prove his title by adverse possession allowed the appeal by making following observations:-Be that as it may, the question whether the appellant has obtained any title in respect of the suit property by way of adverse possession or not is not being decided by this Court and thus this Court is not going into the said question. But the fact remains that the appellant was very much in possession of the suit property when the respondent No.1 took delivery of possession of the suit property through the Courts bailiff without any proceeding being initiated against the appellant and without the appellant being served with any prior notice with regard to such delivery of possession…………..27. The purpose of amendment under Rule 103 is also that any adjudication made under Rule 101 shall have same force and be subject to the same conditions as to an appeal or otherwise as if it was a decree. Rule 101, thus, affords an opportunity to get all issues relating to right, title or interest in the property to be determined. When the respondent No.1 filed his application claiming to be put back into possession, it was obliged to establish its right, title or interest in the property without which his application could not have been allowed. The Executing Court has considered the application of respondent No.1 in right perspective and has clearly held that respondent No.1 failed to prove his title by adverse possession, hence application deserves to be rejected.28. High Court committed error in observing that in application proceedings under Order XXI Rules 99, 100 and 101, the Court is not to decide such question. Without determination of right, title or interest, the application could not have been allowed. We having already extracted the observations of the High Court, where it clearly held that the title in respect of the property by way of adverse possession need not be gone into in the appeal before it. The above observation of the High Court was erroneous. In the proceeding under Order XXI Rules 99, 100 and 101, right, title or interest has to be determined and without establishing right, title or interest, the respondent No.1 cannot claim that he should be put back into possession. We do not accept the submission of the learned counsel for the respondent that on mere fact that respondent No.1 was in possession of the premises prior to being dispossessed, they should be put back into possession. For putting back into possession, the respondent No.1 was obliged to establish his title to the property by adverse possession, without which, he could not have asked the Court to put him back into possession. The High Court clearly erred in allowing the appeal and the Executing Court has rightly rejected the application filed by respondent No.1. We may further notice that suit No.211 of 1990 filed by respondent No.1 seeking declaration of title to the property by adverse possession has been subsequently dismissed by decree on 16.03.2009 and no steps have been taken for restoration of the suit29. We do not find any error in the order passed by the Executing Court and the High Court committed error in allowing the appeal, directing the respondent No.1 to be put back into possession.
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The Regional Provident Fundcommissioner, Bombay Vs. Shree Krishna Metal Manufacturingco., Bhandara | only. If the answer to this question is that the said product is sent out in the market for sale, then the activity in question cannot be treated as incidental. In such a case, it may be said that the factory is engaged in both the activities and as such, it is engaged in the industry specified in Schedule I. But the test of sending the product in the market cannot be treated as decisive or even very significant because the definition of the word "manufacture" given in S. 2(ia) shows that a commodity may be produced by the factory as much for sale, transport, delivery or disposal as for its own use. Therefore, the fact that a commodity is produced only for the use of the factory in its other department may not necessarily show that the activity which leads to the production of the said commodity is not the main activity of the factory.20. If a factory is engaged simultaneously in different industrial activities and one of these is in relation to an industry specified in Schedule I, then it can be said that the factory is engaged in the industry specified in Schedule I. The fact that the factory is engaged in other industrial activities will not necessarily take it out of the purview of S. 1(3)(a). The broad test which may safely be applied in dealing with this question is: is the factory engaged in the industry specified in Schedule I from a business point of view?, and the answer to this question would generally give a satisfactory solution to the problem posed by S. 1(3) (a). Whether or not a factory is engaged in any industry specified in Schedule I would, thus, be a question of fact to be determined in the facts and circumstances of each case. That appears to be the view taken by Balakrishna Ayyar J. in the Madras Pencil Factory v. Regional Provident Fund Commissioner : AIR 1959 Mad 235 , and with that view we are in general agreement.21. What remains now is to consider whether the High Court was right in holding that the company and the Mills are outside the purview of S. 1(3)(a). As we have already seen, the company carries on four different kinds of industrial activities, one of which is the manufacturing of brass, copper and kasa circular sheets and the preparation of utensils therefrom. For the manufacture of metal circular sheets, the Co. has a rolling machine. It is common ground that this work would fall within Schedule I of the Act and so, if it can be held that the Co. is a factory engaged in the industry represented by this work, the first rest is satisfied. As we have already observed this Co. carries on four different kinds of activities and it is impossible to hold that the activity in relation to the industry which falls in Schedule I is either minor, subsidiary or incidental to the other activities. This activity is as much the work of the Co. as the other activities are and so, the Co. must be held to be a factory under S. 1(3)(a) so far as the first test is concerned. In regard to the test of the number of employees engaged in the factory, it appears to be the Co.s case that at the relevant time, the number of its total employees in all the four activities did not consistently exceed 50; but that is a point on which the High Court has expressed no opinion, and rightly, because it is a disputed question of fact which cannot be tried in writ proceedings. The appellants case is that the total number of employees engaged by the Co. exceeded 50 at the relevant time and it is on that footing that the present writ petition has been tried in the High Court. Therefore, without deciding this disputed question of fact, it may be assumed that for the purpose of the present writ proceedings, the test of the numerical strength can be said to have been satisfied. The result is the view taken by the High Court that the company is outside S. 1(3)(a) is erroneous in law and must be reversed; and that means that Appeal No. 361 of 1959 filed by the Regional Commissioner is allowed and the writ petition filed by the Co. is dismissed with costs throughout. In the result, the respondent will have to comply with the requisition issued by the appellant against it under the relevant provisions of the Act.In regard to the date from which the respondent should make its statutory contribution to the Provident Fund, the appellant may have to give a direction after consulting the workmen, because from the date so specified by the appellant both the respondent and its workmen will have to make their respective contributions.22. The position with regard to the Mills is, however, different. The main industrial activity of the Mills is the manufacture of hydrogenated vegetable oil named Vanasada and its by-products, such as soap, oil-cakes etc. It is true that in the Mills tin containers are fabricated and this, no doubt, is an activity covered by Schedule I. But it is obvious that this branch of the activity of the Mills forms a very minor portion of its activity. The number of employees engaged in this branch is 31, whereas the total number of employees is 211. Besides the containers are produced only for the use of the Mills. They are not intended to be sold in the market at all. Price for the containers is not also charged from the customers. Indeed, containers are required even for the purpose of storage of the vegetable oil. It is thus clear that the fabrication of tin containers has been undertaken by the Mills only as a feeder activity; it is integrally connected with its main business of producing and marketing vegetable oil and as such, it is a minor part of the said activity. | 0[ds]It is only factories which are exclusively engaged in any industry specified in Schedule I to which the Act applies, provided of course, they satisfy the other test that there are 50 or more persons employed in them. This argument is based on the fact that when the Act was originally passed in March, 1952, the Legislature had provided for only six industries in Schedule I. The intention of the Legislature was to extend the benefits of the Act to the workmen industry wise step by step. The Legislature was conscious that the relevant provisions of the Act imposed a burden on the employer and so, it took the precaution of confining the operation of the Act only to six important industries specified in Schedule I. Section 1(3)(a) no doubt confers power on the Central Government to extend the provisions of the Act to other factories by issuing a notification, as contemplated by it; and so, whenever the Central Government comes to the conclusion that the benefits of the Act should be extended to workmen engaged in additional categories of factories, it could exercise its power in that behalf and by issuing a notification, bring within the scope of the Act such factories. But this has to be done factory-wise in the sense that it has to be done by reference to the factories engaged in industries included in Schedule I and that shows that it is only factories exclusively engaged in the said industries that are included within the purview of S. 1(3)(a).The definition of the word "factory" prescribed by S. 2(g) of the Act shows that a "factory" means any premises, including the precincts thereof, in any part of which a manufacturing process is being carried on or is ordinarily so carried on, whether with the aid of power or without the aid of power. Thus the word "factory" used in S.1(3)(a) has a comprehensive meaning and it includes premises in which any manufacturing process is being carried on as described in the definition. This definition of the word "factory" shows that the factory engaged in any industry specified in Schedule I cannot necessarily mean a factory exclusively engaged in the particular industry specified in the said Schedule.10. Besides, S. 1(3)(a), as it has been amended in 1956, now refers to every establishment which is a factory engaged in any industry specified in Schedule I and the introduction of the word "establishment" clearly shows that it may consist of different factories dealing with different industries and yet considered as one establishment, it may fall under S. 1(3)(a), provided the other requirements of the said section are satisfied. Section 2A which has been added in the Act by the Amending Act 46 of 1960 makes it clear that an establishment may consist of different departments or may have different branches, whether situate in the same place or in different places, and yet all such departments or branches shall be treated as parts of the same establishment. Therefore, the concept of establishment being of such a comprehensive character, the insertion of the word "establishment" in S. 1(3) (a) by the Amending Act of 1956 helps to negative the argument that the factory therein contemplated cannot be a composite factory.11. Besides, the explanation to Schedule I which has been added by Act 37 of 1953 clearly shows that one of the industries originally included in Schedule I in 1952 definitely suggests the idea of a composite factory and would, thus, assist the interpretation of the word "factory" as including a composite factory under S. 1 (3)(a). The Industry in question is electrical, mechanical or general engineering products and the explanation of this industry shows that it includes 25 different items, and so any factory carrying on the work of producing one or more of these items would not be exclusively engaged in producing one or the other of those items and would be in the nature of a composite factory and yet it would definitely fall under S. 1 (3) (a). Therefore, in our opinion, the argument that a composite factory carrying on different industrial operations is outside the purview of S. 1(3)(a) cannot beordinary rule of grammar on which this construction is based cannot be treated as an invariable rule which must always and in every case be accepted without regard to the context. If the context definitely suggests that the relevant rule of grammar is inapplicable, then the requirement of the context must prevail over the rule of grammar. As the provision stands, the word factories is qualified by two clauses. The first adjectival clause is engaged in any industry specified in Schedule I and the second clause is "in which 50 or more persons are employed". In other words, in order that the factories should fall within the scope of the provision, they must satisfy two tests : they must be engaged in any industry specified in Schedule I and they must have employed 50 or more persons. The first adjectival clause is in the nature of a parenthetical clause and so the clause beginning with the words "in which" must necessarily qualify the word "factories" and not the word "industry". Therefore, in our opinion, the requirement as to the prescribed number qualifies the word "factories" and does not qualify the word "industry"; that means the question to ask is : does the factory employ 50 or more persons? The question is not : does the industry employ 50 or more personsmay be said that even if a factory is only partially engaged in any industry specified in schedule I, it would satisfy the test however small or insignificant may be the extent of its operation in the said industry. On this construction, it would follow that if a factory is engaged in several industrial operations one of which relates to an industry specified in schedule I, the factory would fall under S. 1(3)(a) even though its relevant activity in the specified industry may be of a minor, incidental or subsidiary character. The other construction would be that the expression engaged in any industry" means "primarily or mainly engaged in any industry". On this construction, if a factory is engaged in several industrial activities, one of which relates to the industry specified in schedule I, it would be necessary to enquire whether the said specified activity is subsidiary or minor; if it is subsidiary, incidental or minor, the factory cannot be said to be engaged in that industry. Cases may occur where a factory is primarily or mainly engaged in other industrial activities and it is only for feeding one or more of such activities that the factory may undertake an activity in respect of the specified industry. But such an undertaking is merely, for the purpose of feeding its major activity; it is subsidiary, incidental and minor. In that case, the factory cannot be said to be engaged in the industry specified in Schedule I. Both constructions are possible and each one of them presents some anomalies. On the first construction, it would follow that even if half a dozen employees are engaged by the factory in regard to its activity in the industry specified in Schedule I, the provisions of the Act would apply to all the workmen engaged in the whole of the factory because the factory would be deemed to have satisfied the test that it is engaged in the industry specified in Schedule I and that, no doubt, looks anomalous. On the other hand, if the second construction is accepted, though more than 50 persons may be employed in the incidental and subsidiary activity relating to an industry specified in Schedule I, the provisions of the Act will not apply to such workmen because the factory, as a whole, does not satisfy the test that it is engaged in the said industry and that also is anomalous.18. It is true that in dealing with the construction of a clause which is capable of two reasonably possible constructions, it is not easy to make a choice, particularly when both constructions seem to lead to some anomalies. On the whole, however, we are inclined to take the view that the clause "engaged in any industry specified in Schedule I" should be interpreted to mean "mainly engaged in any industry specified in Schedule I. If a factory is engaged in two industrial activities one of which is its primary, principal or dominant activity and the other is a purely subsidiary, incidental, minor or feeding activity, then it is the primary or the dominant activity which should determine the character of the factory under S. 1(3)(a).This view does not purport to add any word to the section; it merely interprets the relevant expression "engaged in any industry specified in Schedule I." When it is said that a person is engaged in any business, it usually means he is engaged mainly or principally in that business; and the same would be the position when the relevant clause refers to an establishment engaged in the specified industry. That is the common sense view which is consistent with the current and accepted denotation of the words "engaged in.19. One of the tests which can sometimes be applied is whether the product of the incidental activity is intended for the market or exclusively for use by the factory in its other department only. If the answer to this question is that the said product is sent out in the market for sale, then the activity in question cannot be treated as incidental. In such a case, it may be said that the factory is engaged in both the activities and as such, it is engaged in the industry specified in Schedule I. But the test of sending the product in the market cannot be treated as decisive or even very significant because the definition of the word "manufacture" given in S. 2(ia) shows that a commodity may be produced by the factory as much for sale, transport, delivery or disposal as for its own use. Therefore, the fact that a commodity is produced only for the use of the factory in its other department may not necessarily show that the activity which leads to the production of the said commodity is not the main activity of the factory.20. If a factory is engaged simultaneously in different industrial activities and one of these is in relation to an industry specified in Schedule I, then it can be said that the factory is engaged in the industry specified in Schedule I. The fact that the factory is engaged in other industrial activities will not necessarily take it out of the purview of S. 1(3)(a). The broad test which may safely be applied in dealing with this question is: is the factory engaged in the industry specified in Schedule I from a business point of view?, and the answer to this question would generally give a satisfactory solution to the problem posed by S. 1(3)we have already seen, the company carries on four different kinds of industrial activities, one of which is the manufacturing of brass, copper and kasa circular sheets and the preparation of utensils therefrom. For the manufacture of metal circular sheets, the Co. has a rolling machine. It is common ground that this work would fall within Schedule I of the Act and so, if it can be held that the Co. is a factory engaged in the industry represented by this work, the first rest is satisfied. As we have already observed this Co. carries on four different kinds of activities and it is impossible to hold that the activity in relation to the industry which falls in Schedule I is either minor, subsidiary or incidental to the other activities. This activity is as much the work of the Co. as the other activities are and so, the Co. must be held to be a factory under S. 1(3)(a) so far as the first test is concerned. In regard to the test of the number of employees engaged in the factory, it appears to be the Co.s case that at the relevant time, the number of its total employees in all the four activities did not consistently exceed 50; but that is a point on which the High Court has expressed no opinion, and rightly, because it is a disputed question of fact which cannot be tried in writ proceedings. The appellants case is that the total number of employees engaged by the Co. exceeded 50 at the relevant time and it is on that footing that the present writ petition has been tried in the High Court. Therefore, without deciding this disputed question of fact, it may be assumed that for the purpose of the present writ proceedings, the test of the numerical strength can be said to have been satisfied. The result is the view taken by the High Court that the company is outside S. 1(3)(a) is erroneous in law and must be reversed; and that means that Appeal No. 361 of 1959 filed by the Regional Commissioner is allowed and the writ petition filed by the Co. is dismissed with costs throughout. In the result, the respondent will have to comply with the requisition issued by the appellant against it under the relevant provisions of the Act.In regard to the date from which the respondent should make its statutory contribution to the Provident Fund, the appellant may have to give a direction after consulting the workmen, because from the date so specified by the appellant both the respondent and its workmen will have to make their respective contributions.22. The position with regard to the Mills is, however, different. The main industrial activity of the Mills is the manufacture of hydrogenated vegetable oil named Vanasada and its by-products, such as soap, oil-cakes etc. It is true that in the Mills tin containers are fabricated and this, no doubt, is an activity covered by Schedule I. But it is obvious that this branch of the activity of the Mills forms a very minor portion of its activity. The number of employees engaged in this branch is 31, whereas the total number of employees is 211. Besides the containers are produced only for the use of the Mills. They are not intended to be sold in the market at all. Price for the containers is not also charged from the customers. Indeed, containers are required even for the purpose of storage of the vegetable oil. It is thus clear that the fabrication of tin containers has been undertaken by the Mills only as a feeder activity; it is integrally connected with its main business of producing and marketing vegetable oil and as such, it is a minor part of the said activity. | 0 | 5,277 | 2,778 | ### Instruction:
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only. If the answer to this question is that the said product is sent out in the market for sale, then the activity in question cannot be treated as incidental. In such a case, it may be said that the factory is engaged in both the activities and as such, it is engaged in the industry specified in Schedule I. But the test of sending the product in the market cannot be treated as decisive or even very significant because the definition of the word "manufacture" given in S. 2(ia) shows that a commodity may be produced by the factory as much for sale, transport, delivery or disposal as for its own use. Therefore, the fact that a commodity is produced only for the use of the factory in its other department may not necessarily show that the activity which leads to the production of the said commodity is not the main activity of the factory.20. If a factory is engaged simultaneously in different industrial activities and one of these is in relation to an industry specified in Schedule I, then it can be said that the factory is engaged in the industry specified in Schedule I. The fact that the factory is engaged in other industrial activities will not necessarily take it out of the purview of S. 1(3)(a). The broad test which may safely be applied in dealing with this question is: is the factory engaged in the industry specified in Schedule I from a business point of view?, and the answer to this question would generally give a satisfactory solution to the problem posed by S. 1(3) (a). Whether or not a factory is engaged in any industry specified in Schedule I would, thus, be a question of fact to be determined in the facts and circumstances of each case. That appears to be the view taken by Balakrishna Ayyar J. in the Madras Pencil Factory v. Regional Provident Fund Commissioner : AIR 1959 Mad 235 , and with that view we are in general agreement.21. What remains now is to consider whether the High Court was right in holding that the company and the Mills are outside the purview of S. 1(3)(a). As we have already seen, the company carries on four different kinds of industrial activities, one of which is the manufacturing of brass, copper and kasa circular sheets and the preparation of utensils therefrom. For the manufacture of metal circular sheets, the Co. has a rolling machine. It is common ground that this work would fall within Schedule I of the Act and so, if it can be held that the Co. is a factory engaged in the industry represented by this work, the first rest is satisfied. As we have already observed this Co. carries on four different kinds of activities and it is impossible to hold that the activity in relation to the industry which falls in Schedule I is either minor, subsidiary or incidental to the other activities. This activity is as much the work of the Co. as the other activities are and so, the Co. must be held to be a factory under S. 1(3)(a) so far as the first test is concerned. In regard to the test of the number of employees engaged in the factory, it appears to be the Co.s case that at the relevant time, the number of its total employees in all the four activities did not consistently exceed 50; but that is a point on which the High Court has expressed no opinion, and rightly, because it is a disputed question of fact which cannot be tried in writ proceedings. The appellants case is that the total number of employees engaged by the Co. exceeded 50 at the relevant time and it is on that footing that the present writ petition has been tried in the High Court. Therefore, without deciding this disputed question of fact, it may be assumed that for the purpose of the present writ proceedings, the test of the numerical strength can be said to have been satisfied. The result is the view taken by the High Court that the company is outside S. 1(3)(a) is erroneous in law and must be reversed; and that means that Appeal No. 361 of 1959 filed by the Regional Commissioner is allowed and the writ petition filed by the Co. is dismissed with costs throughout. In the result, the respondent will have to comply with the requisition issued by the appellant against it under the relevant provisions of the Act.In regard to the date from which the respondent should make its statutory contribution to the Provident Fund, the appellant may have to give a direction after consulting the workmen, because from the date so specified by the appellant both the respondent and its workmen will have to make their respective contributions.22. The position with regard to the Mills is, however, different. The main industrial activity of the Mills is the manufacture of hydrogenated vegetable oil named Vanasada and its by-products, such as soap, oil-cakes etc. It is true that in the Mills tin containers are fabricated and this, no doubt, is an activity covered by Schedule I. But it is obvious that this branch of the activity of the Mills forms a very minor portion of its activity. The number of employees engaged in this branch is 31, whereas the total number of employees is 211. Besides the containers are produced only for the use of the Mills. They are not intended to be sold in the market at all. Price for the containers is not also charged from the customers. Indeed, containers are required even for the purpose of storage of the vegetable oil. It is thus clear that the fabrication of tin containers has been undertaken by the Mills only as a feeder activity; it is integrally connected with its main business of producing and marketing vegetable oil and as such, it is a minor part of the said activity.
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I." When it is said that a person is engaged in any business, it usually means he is engaged mainly or principally in that business; and the same would be the position when the relevant clause refers to an establishment engaged in the specified industry. That is the common sense view which is consistent with the current and accepted denotation of the words "engaged in.19. One of the tests which can sometimes be applied is whether the product of the incidental activity is intended for the market or exclusively for use by the factory in its other department only. If the answer to this question is that the said product is sent out in the market for sale, then the activity in question cannot be treated as incidental. In such a case, it may be said that the factory is engaged in both the activities and as such, it is engaged in the industry specified in Schedule I. But the test of sending the product in the market cannot be treated as decisive or even very significant because the definition of the word "manufacture" given in S. 2(ia) shows that a commodity may be produced by the factory as much for sale, transport, delivery or disposal as for its own use. Therefore, the fact that a commodity is produced only for the use of the factory in its other department may not necessarily show that the activity which leads to the production of the said commodity is not the main activity of the factory.20. If a factory is engaged simultaneously in different industrial activities and one of these is in relation to an industry specified in Schedule I, then it can be said that the factory is engaged in the industry specified in Schedule I. The fact that the factory is engaged in other industrial activities will not necessarily take it out of the purview of S. 1(3)(a). The broad test which may safely be applied in dealing with this question is: is the factory engaged in the industry specified in Schedule I from a business point of view?, and the answer to this question would generally give a satisfactory solution to the problem posed by S. 1(3)we have already seen, the company carries on four different kinds of industrial activities, one of which is the manufacturing of brass, copper and kasa circular sheets and the preparation of utensils therefrom. For the manufacture of metal circular sheets, the Co. has a rolling machine. It is common ground that this work would fall within Schedule I of the Act and so, if it can be held that the Co. is a factory engaged in the industry represented by this work, the first rest is satisfied. As we have already observed this Co. carries on four different kinds of activities and it is impossible to hold that the activity in relation to the industry which falls in Schedule I is either minor, subsidiary or incidental to the other activities. This activity is as much the work of the Co. as the other activities are and so, the Co. must be held to be a factory under S. 1(3)(a) so far as the first test is concerned. In regard to the test of the number of employees engaged in the factory, it appears to be the Co.s case that at the relevant time, the number of its total employees in all the four activities did not consistently exceed 50; but that is a point on which the High Court has expressed no opinion, and rightly, because it is a disputed question of fact which cannot be tried in writ proceedings. The appellants case is that the total number of employees engaged by the Co. exceeded 50 at the relevant time and it is on that footing that the present writ petition has been tried in the High Court. Therefore, without deciding this disputed question of fact, it may be assumed that for the purpose of the present writ proceedings, the test of the numerical strength can be said to have been satisfied. The result is the view taken by the High Court that the company is outside S. 1(3)(a) is erroneous in law and must be reversed; and that means that Appeal No. 361 of 1959 filed by the Regional Commissioner is allowed and the writ petition filed by the Co. is dismissed with costs throughout. In the result, the respondent will have to comply with the requisition issued by the appellant against it under the relevant provisions of the Act.In regard to the date from which the respondent should make its statutory contribution to the Provident Fund, the appellant may have to give a direction after consulting the workmen, because from the date so specified by the appellant both the respondent and its workmen will have to make their respective contributions.22. The position with regard to the Mills is, however, different. The main industrial activity of the Mills is the manufacture of hydrogenated vegetable oil named Vanasada and its by-products, such as soap, oil-cakes etc. It is true that in the Mills tin containers are fabricated and this, no doubt, is an activity covered by Schedule I. But it is obvious that this branch of the activity of the Mills forms a very minor portion of its activity. The number of employees engaged in this branch is 31, whereas the total number of employees is 211. Besides the containers are produced only for the use of the Mills. They are not intended to be sold in the market at all. Price for the containers is not also charged from the customers. Indeed, containers are required even for the purpose of storage of the vegetable oil. It is thus clear that the fabrication of tin containers has been undertaken by the Mills only as a feeder activity; it is integrally connected with its main business of producing and marketing vegetable oil and as such, it is a minor part of the said activity.
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Indian Bank Vs. Godhara Nagrik Cooperative Credit Society Ltd. and Ors. | . We, however, do not think that facts involved in each case and the law laid down therein need to be discussed at length as there does not exist any dispute in regard to basic principles laid down therein. In Hyderabad Commercials v. Indian Bank and Ors. AIR1991SC247 , this Court held: Since the basic facts regarding the unauthorized transfer of the disputed amount from the appellants account as well as the banks liability was admitted, there was no justification for the High Court to direct the appellant to file suit on ground of disputed questions of fact. The respondent bank is an instrumentality of the State and it must function honestly to serve its customers. Would the ratio laid down therein apply in the instant case? We do not think so. The question as to whether fraud has been committed by the officers of the bank is pending consideration before a competent criminal court. There are other various disputed questions which are required to be gone into in the said proceeding. The role played by some of the writ petitioners - respondents is also in issue. Such a seriously disputed questions of fact, in our opinion, could not have been gone into by the writ court. We would accept the proposition of law as propounded by this Court in Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan and Ors. (2003)7SCC546 . In that case it was, inter alia, observed that public interest litigation procedures may be adopted in a case where initially the writ petition was filed as a private interest litigation. (See also Ashok Lanka and Anr. v. Rishi Dixit and Ors. AIR2005SC2821 . We may in this behalf notice development of law in other jurisdiction. Abram Chayes in his article on The Role of the Judge in Public Law Litigation Harv. Law. Rev. Vol. 89 (1976) at Pg. 1281 opines that Traditionally, adjudication has been understood to be a process for resolving disputes among private parties which have not been privately settled. He thus emphasizes the need for a Public Law model wherein the traditional adversary relationship is suffused and intermixed with negotiating and mediating processes at every point. The judge is the dominant figure in organizing and guiding the case, and he draws for support not only on the parties and their counsel, but on a wide range of outsiders-masters, experts and oversight personnel. He goes on to give examples of school desegregation, employment discrimination, and prisoners or inmates rights cases as also antitrust, securities fraud and other aspects of the conduct of the corporate business, bankruptcy and reorganizations, union governance, consumer fraud, housing discrimination, electoral reapportionment, environmental management- fields that display in varying degrees the features of public law litigation. According to him, The public law litigation model inter-alia has the following features: 7. The judge is not passive, his function limited to analysis and statement of governing legal rules; he is active, with responsibility not only for credible fact evaluation but for organizing and shaping the litigation to ensure a just and viable outcome. 8. The subject matter of the lawsuit is not a dispute between private individuals about private rights, but a grievance about the operation of public policy. In Krishna Swami v. Union of India and Anr. AIR1993SC1407 With Raj Kanwar v. Union of India and Anr. AIR1993SC1407 , a constitutional bench of this Court had to decide upon the maintainability of a writ petition filed under Article 32 against the removal of a Supreme Court judge without impleading the judge himself as a party to the proceedings. The court on the role of an investigation committee opined: The investigation done by the Committee, thus is to find whether the alleged misbehavior incapacity has been proved. Undoubtedly, the public law litigation often contradicts the premise behind those of private law. In public law wider public interest it involved over and beyond he contending parties. It concerns the future and private law litigation is retrospective in operation. What the court could do? It could appoint a Committee. But the decision of the Committee would not have been decisive. The Division Bench appears to have applied its mind on the report, but in the absence of any categorical finding that it was the officers of the Banks alone who were liable, no direction as has been done in the instant case should have been issued. It may be that in appropriate cases, the court may find the recommendations made by the Committee acceptable. 18. But it is, in our opinion, not a public interest litigation in that sense of the term. The report, however, was not unanimous. The opinion of the Committee was a divided one on the crucial issue. Two members of the Committee were of the opinion that whether the amount deposited by the cooperative banks was received back by them or not, was yet to be ascertained. We are, therefore, of the opinion that it cannot be said that the fact finding body, assuming that the same could be constituted, made such recommendations which could be accepted by the Court without going into the merit thereof. It is also not a case where any mandatory relief could be granted in favour of the respondents. 19. Having however said so, we must pose unto ourselves a further question. Could those cooperative societies which had absolutely no role to play in the entire episode should suffer in any manner whatsoever? The cooperative societies/cooperative banks for the purpose of their day-to-day functioning, require the amount which they have invested in FDRs on their maturity. Should they wait till the criminal cases are over? Should they be pushed to institute civil suits? They can indisputably be compensated by grant of interest. What, however, happens if in the meanwhile in the absence of the requisite funds being available to them, they find it difficult to run the day-to-day affairs? 20. Answers thereto may be difficult to find but it is not a wholly impossible task. | 1[ds]The propositions of law which are undisputed are:i) Writ Petitions against the banks being `State within the meaning of Article 12 of the Constitution of India were maintainable;ii) Writ Petitions involving serious disputed questions of fact, ordinarily should not be entertained although the High Court in some cases may enter into disputed questions of fact.The powers and functions delegated to the Committee were wide, by reason whereof for all intent and purport, even judicial power were delegated.Indisputably, the authorities of the Reserve Bank of India in exercise of their statutory powers conferred upon them under Section 35A of the Banking Regulation Act could issue directions for initiating an enquiry into the affairs of the Banks. The Banks being public sector undertakings could themselves do so and have in fact done so.It is one thing to say that the Public Sector Banks having regard to the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 should discharge their functions keeping in mind the larger public interest but ordinarily in the matter of enforcement of contract, they are to be governed by the terms thereof, which would not be amenable to writ jurisdiction of the High Court unless the actions of the banks are found to be wholly arbitrary and unreasonable.The core question which arises for consideration in the writ petitions was as to whether, keeping in view the apprehension in the mind of the Bank that it has been subjected to fraud by its own officers as also the apprehension in their mind that the writ petitioners or their agents might have conspired with the offices of the Banks, was it unfair and unreasonable in its decision to refuse to make payment? The answer to that question prima facie must be rendered in the negative. If, however, it is found as of fact that the writ petitioners-respondents were not parties to the fraud, whether even in a lis involving private law domain, namely, contract qua contract, as a trustee of the investors money, they may be held to be liable to refund the amount, is the question?.Indisputably, whether as a public sector undertakings or otherwise the banks cannot refuse to accede to the just demand of the investors to pay any amount lawfully due to them inter alia on the premise that their officers are guilty of commission of any fraud.It is one thing to say that fraud has been committed by their officers to cause wrongful loss to the bank but it is another thing to say that the banks are constructively liable for the acts of their officers.In given cases, the employers are constructively liable for acts of negligence on the part of their employees.We will, thus, assume for the purpose of this case that the Banks are constructively liable for acts of their employees. We will also assume that the Banks are liable to pay the amount under the contract for which the FDRs were issued.A writ petition indisputably would be maintainable even in relation to a matter arising out of contract qua contract.12. As has been submitted by Mr. Sundaram that some cases may start on a private interest but if the court finds involvement of a public law element therein concerning a large number of people, it may proceed on the basis as if it was a public interest litigation and appoint a Committee and then grant relief in favour of the writ petitioners. Whether such an extraordinary case has been made out herein is the question.Respondents are cooperative societies. They at the instance of some agents or the middlemen thought it expedient to invest in Fixed Deposit Receipts (FDRs) in Bank of Baroda and Indian Bank. The modus operandi appears to be that the brokers/intermediaries lured a few cooperative banks/credit societies for placing deposits with the branches of Bank of Baroda/Indian Bank in and around Surat as also at Bharuch wherefor a handsome commission/incentive ranging from 3.8 to 25 per cent used to be given. The Cooperative Societies themselves did not approach the Bank. All acts were done through the agents. The documents seem to have been sent through brokers who also delivered to them the Maturity Value Certificates in lieu of original FDRs or the FDRs/Xeroxed copies, in addition to delivery of drafts for commission. The commission used to be paid in cash. In some cases, the original FDRs were retained by the banks. However, the original documents sent by the cooperative societies to the banks in some cases were not available in the offices of the bank but a different set of documents were replaced in the files. Loans were raised against FDRs on the basis of such documents mainly for further investment by private individuals. Funds were withdrawn in cash either directly from their current accounts or by issuing cheques in favour of some individuals who reportedly discounted their cheques.13. The fact that the officers of the banks were involved in the entire dealings is not in dispute. It is furthermore not in dispute that some brokers/commission agents were also involved. To what extent, the authorities of the cooperative banks and/or cooperative societies were involved and/or in know thereof, however, is not very certain.As per the judgment of the learned single judge, the Committee consisted of three members. When the Committee dealt with the cases of Bank of Baroda, only the representative of Bank of Baroda acted as a member and when the Committee dealt with the cases of Indian Bank, only the representative of the Indian Bank acted in the said capacity. The other members of the Committee were Shri JR Prabhu, Banking Ombudsman, Mumbai and Mr. VS Das, Regional Director, RBI, Ahmedabad.15. We have been taken through the report submitted by the Committee. The Committee did a yeoman job. It went into various aspects of the matter. It tried to cover as much ground as possible. It noticed the facts leading to setting up of the Committee. It considered the written submissions as also the oral submissions of the appellant and the submissions made by the respective banks, the officers of the banks, the intermediaries as also the actions taken by the banks concerned.Whereas general observations and recommendations by all the members appear to be unanimous, no unanimity however could be reached in regard to the question as to what direction could be issued in the matter.Whereas the Chairman and Regional Director, RBI were of the opinion that the banks should refund the disputed amounts of deposit to the depositors; other two members representing the Banks were of the view that the return of the deposits may amount to double payments to the depositors.Unanimity, however, was arrived at that no interest on the amount of deposits would be payable. It opined that the officers of the banks were primarily responsible for perpetration of fraud.16. A writ court exercising the power of judicial review has a limited jurisdiction. A writ petition would lie against a State within the meaning of Article 12 of the Constitution of India. Indisputably, exercise of jurisdiction by the High Court is permissible in a case where action of the State is found to be unfair, unreasonable or arbitrary. The question which should have been posed by the High Court was as to whether the action of the bank was so arbitrary so as to invoke the public law jurisdiction. If the answer to the said question was to be in the negative, the High Court should have refused to exercise its jurisdiction.A fraud has been practiced on the banks. Primary accused may be the bank officers but a conspiracy with them by the outsiders has also been alleged. The original FDRs only in some cases are available; in most of the cases they are not. Even the Committee could not decide for as to which one was the original FDR and which was not. It could not distinguish between an original FDR and the Xerox copy thereof.Opinion of the expert thereon might have been received, but the final verdict thereupon in the cases initiated by the C.B.I. is still awaited.17. The law as regards application of the power of judicial review, inter alia, in the contractual filed stands covered by a large number of decisions. (See LIC of India and Anr. v. Consumer Education & Research Centre and Ors. AIR1995SC1811 , Sanjana M. Wig (Ms) v. Hindustan Petroleum Corpn. Ltd. AIR2005SC3454 , ABL International Ltd and Anr. v. Export Credit Guarantee Corporation of India Ltd and Ors. (2004)3SCC553 , The D.F.O, South Kheri and Ors. v. Ram Sanehi Singh AIR1973SC205 . We, however, do not think that facts involved in each case and the law laid down therein need to be discussed at length as there does not exist any dispute in regard to basic principles laid down therein.In Hyderabad Commercials v. Indian Bank and Ors. AIR1991SC247 , this Court held:Since the basic facts regarding the unauthorized transfer of the disputed amount from the appellants account as well as the banks liability was admitted, there was no justification for the High Court to direct the appellant to file suit on ground of disputed questions of fact. The respondent bank is an instrumentality of the State and it must function honestly to serve its customers.Would the ratio laid down therein apply in the instant case? We do not think so. The question as to whether fraud has been committed by the officers of the bank is pending consideration before a competent criminal court. There are other various disputed questions which are required to be gone into in the said proceeding. The role played by some of the writ petitioners - respondents is also in issue. Such a seriously disputed questions of fact, in our opinion, could not have been gone into by the writ court.We would accept the proposition of law as propounded by this Court in Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan and Ors. (2003)7SCC546 . In that case it was, inter alia, observed that public interest litigation procedures may be adopted in a case where initially the writ petition was filed as a private interest litigation. (See also Ashok Lanka and Anr. v. Rishi Dixit and Ors.AIR2005SC2821 .18. But it is, in our opinion, not a public interest litigation in that sense of the term. The report, however, was not unanimous. The opinion of the Committee was a divided one on the crucial issue. Two members of the Committee were of the opinion that whether the amount deposited by the cooperative banks was received back by them or not, was yet to be ascertained. We are, therefore, of the opinion that it cannot be said that the fact finding body, assuming that the same could be constituted, made such recommendations which could be accepted by the Court without going into the merit thereof. It is also not a case where any mandatory relief could be granted in favour of the respondents.20. Answers thereto may be difficult to find but it is not a wholly impossible task.The learned single judge opined that there existed disputed questions of fact in respect whereof no definite finding could be arrived at having regard to the modus operandi of the persons involved.14. The private dispute between the parties were, thus, sought to be converted into a public interest litigation for the purpose of making an enquiry into the affairs of the bank by a Committee.19. Having however said so, we must pose unto ourselves a further question. Could those cooperative societies which had absolutely no role to play in the entire episode should suffer in any manner whatsoever? The cooperative societies/cooperative banks for the purpose of their day-to-day functioning, require the amount which they have invested in FDRs on their maturity. Should they wait till the criminal cases are over? Should they be pushed to institute civil suits? They can indisputably be compensated by grant of interest. What, however, happens if in the meanwhile in the absence of the requisite funds being available to them, they find it difficult to run the day-to-day affairs? | 1 | 6,082 | 2,189 | ### Instruction:
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. We, however, do not think that facts involved in each case and the law laid down therein need to be discussed at length as there does not exist any dispute in regard to basic principles laid down therein. In Hyderabad Commercials v. Indian Bank and Ors. AIR1991SC247 , this Court held: Since the basic facts regarding the unauthorized transfer of the disputed amount from the appellants account as well as the banks liability was admitted, there was no justification for the High Court to direct the appellant to file suit on ground of disputed questions of fact. The respondent bank is an instrumentality of the State and it must function honestly to serve its customers. Would the ratio laid down therein apply in the instant case? We do not think so. The question as to whether fraud has been committed by the officers of the bank is pending consideration before a competent criminal court. There are other various disputed questions which are required to be gone into in the said proceeding. The role played by some of the writ petitioners - respondents is also in issue. Such a seriously disputed questions of fact, in our opinion, could not have been gone into by the writ court. We would accept the proposition of law as propounded by this Court in Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan and Ors. (2003)7SCC546 . In that case it was, inter alia, observed that public interest litigation procedures may be adopted in a case where initially the writ petition was filed as a private interest litigation. (See also Ashok Lanka and Anr. v. Rishi Dixit and Ors. AIR2005SC2821 . We may in this behalf notice development of law in other jurisdiction. Abram Chayes in his article on The Role of the Judge in Public Law Litigation Harv. Law. Rev. Vol. 89 (1976) at Pg. 1281 opines that Traditionally, adjudication has been understood to be a process for resolving disputes among private parties which have not been privately settled. He thus emphasizes the need for a Public Law model wherein the traditional adversary relationship is suffused and intermixed with negotiating and mediating processes at every point. The judge is the dominant figure in organizing and guiding the case, and he draws for support not only on the parties and their counsel, but on a wide range of outsiders-masters, experts and oversight personnel. He goes on to give examples of school desegregation, employment discrimination, and prisoners or inmates rights cases as also antitrust, securities fraud and other aspects of the conduct of the corporate business, bankruptcy and reorganizations, union governance, consumer fraud, housing discrimination, electoral reapportionment, environmental management- fields that display in varying degrees the features of public law litigation. According to him, The public law litigation model inter-alia has the following features: 7. The judge is not passive, his function limited to analysis and statement of governing legal rules; he is active, with responsibility not only for credible fact evaluation but for organizing and shaping the litigation to ensure a just and viable outcome. 8. The subject matter of the lawsuit is not a dispute between private individuals about private rights, but a grievance about the operation of public policy. In Krishna Swami v. Union of India and Anr. AIR1993SC1407 With Raj Kanwar v. Union of India and Anr. AIR1993SC1407 , a constitutional bench of this Court had to decide upon the maintainability of a writ petition filed under Article 32 against the removal of a Supreme Court judge without impleading the judge himself as a party to the proceedings. The court on the role of an investigation committee opined: The investigation done by the Committee, thus is to find whether the alleged misbehavior incapacity has been proved. Undoubtedly, the public law litigation often contradicts the premise behind those of private law. In public law wider public interest it involved over and beyond he contending parties. It concerns the future and private law litigation is retrospective in operation. What the court could do? It could appoint a Committee. But the decision of the Committee would not have been decisive. The Division Bench appears to have applied its mind on the report, but in the absence of any categorical finding that it was the officers of the Banks alone who were liable, no direction as has been done in the instant case should have been issued. It may be that in appropriate cases, the court may find the recommendations made by the Committee acceptable. 18. But it is, in our opinion, not a public interest litigation in that sense of the term. The report, however, was not unanimous. The opinion of the Committee was a divided one on the crucial issue. Two members of the Committee were of the opinion that whether the amount deposited by the cooperative banks was received back by them or not, was yet to be ascertained. We are, therefore, of the opinion that it cannot be said that the fact finding body, assuming that the same could be constituted, made such recommendations which could be accepted by the Court without going into the merit thereof. It is also not a case where any mandatory relief could be granted in favour of the respondents. 19. Having however said so, we must pose unto ourselves a further question. Could those cooperative societies which had absolutely no role to play in the entire episode should suffer in any manner whatsoever? The cooperative societies/cooperative banks for the purpose of their day-to-day functioning, require the amount which they have invested in FDRs on their maturity. Should they wait till the criminal cases are over? Should they be pushed to institute civil suits? They can indisputably be compensated by grant of interest. What, however, happens if in the meanwhile in the absence of the requisite funds being available to them, they find it difficult to run the day-to-day affairs? 20. Answers thereto may be difficult to find but it is not a wholly impossible task.
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banks, the officers of the banks, the intermediaries as also the actions taken by the banks concerned.Whereas general observations and recommendations by all the members appear to be unanimous, no unanimity however could be reached in regard to the question as to what direction could be issued in the matter.Whereas the Chairman and Regional Director, RBI were of the opinion that the banks should refund the disputed amounts of deposit to the depositors; other two members representing the Banks were of the view that the return of the deposits may amount to double payments to the depositors.Unanimity, however, was arrived at that no interest on the amount of deposits would be payable. It opined that the officers of the banks were primarily responsible for perpetration of fraud.16. A writ court exercising the power of judicial review has a limited jurisdiction. A writ petition would lie against a State within the meaning of Article 12 of the Constitution of India. Indisputably, exercise of jurisdiction by the High Court is permissible in a case where action of the State is found to be unfair, unreasonable or arbitrary. The question which should have been posed by the High Court was as to whether the action of the bank was so arbitrary so as to invoke the public law jurisdiction. If the answer to the said question was to be in the negative, the High Court should have refused to exercise its jurisdiction.A fraud has been practiced on the banks. Primary accused may be the bank officers but a conspiracy with them by the outsiders has also been alleged. The original FDRs only in some cases are available; in most of the cases they are not. Even the Committee could not decide for as to which one was the original FDR and which was not. It could not distinguish between an original FDR and the Xerox copy thereof.Opinion of the expert thereon might have been received, but the final verdict thereupon in the cases initiated by the C.B.I. is still awaited.17. The law as regards application of the power of judicial review, inter alia, in the contractual filed stands covered by a large number of decisions. (See LIC of India and Anr. v. Consumer Education & Research Centre and Ors. AIR1995SC1811 , Sanjana M. Wig (Ms) v. Hindustan Petroleum Corpn. Ltd. AIR2005SC3454 , ABL International Ltd and Anr. v. Export Credit Guarantee Corporation of India Ltd and Ors. (2004)3SCC553 , The D.F.O, South Kheri and Ors. v. Ram Sanehi Singh AIR1973SC205 . We, however, do not think that facts involved in each case and the law laid down therein need to be discussed at length as there does not exist any dispute in regard to basic principles laid down therein.In Hyderabad Commercials v. Indian Bank and Ors. AIR1991SC247 , this Court held:Since the basic facts regarding the unauthorized transfer of the disputed amount from the appellants account as well as the banks liability was admitted, there was no justification for the High Court to direct the appellant to file suit on ground of disputed questions of fact. The respondent bank is an instrumentality of the State and it must function honestly to serve its customers.Would the ratio laid down therein apply in the instant case? We do not think so. The question as to whether fraud has been committed by the officers of the bank is pending consideration before a competent criminal court. There are other various disputed questions which are required to be gone into in the said proceeding. The role played by some of the writ petitioners - respondents is also in issue. Such a seriously disputed questions of fact, in our opinion, could not have been gone into by the writ court.We would accept the proposition of law as propounded by this Court in Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan and Ors. (2003)7SCC546 . In that case it was, inter alia, observed that public interest litigation procedures may be adopted in a case where initially the writ petition was filed as a private interest litigation. (See also Ashok Lanka and Anr. v. Rishi Dixit and Ors.AIR2005SC2821 .18. But it is, in our opinion, not a public interest litigation in that sense of the term. The report, however, was not unanimous. The opinion of the Committee was a divided one on the crucial issue. Two members of the Committee were of the opinion that whether the amount deposited by the cooperative banks was received back by them or not, was yet to be ascertained. We are, therefore, of the opinion that it cannot be said that the fact finding body, assuming that the same could be constituted, made such recommendations which could be accepted by the Court without going into the merit thereof. It is also not a case where any mandatory relief could be granted in favour of the respondents.20. Answers thereto may be difficult to find but it is not a wholly impossible task.The learned single judge opined that there existed disputed questions of fact in respect whereof no definite finding could be arrived at having regard to the modus operandi of the persons involved.14. The private dispute between the parties were, thus, sought to be converted into a public interest litigation for the purpose of making an enquiry into the affairs of the bank by a Committee.19. Having however said so, we must pose unto ourselves a further question. Could those cooperative societies which had absolutely no role to play in the entire episode should suffer in any manner whatsoever? The cooperative societies/cooperative banks for the purpose of their day-to-day functioning, require the amount which they have invested in FDRs on their maturity. Should they wait till the criminal cases are over? Should they be pushed to institute civil suits? They can indisputably be compensated by grant of interest. What, however, happens if in the meanwhile in the absence of the requisite funds being available to them, they find it difficult to run the day-to-day affairs?
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Mintu Bhakta Vs. State of West Bengal | arrested on August 31, 1971 and detained in jail. At the time of the arrest he was served with the grounds for his detention. on August 19, 1971, the District Magistrate reported the petitioners case to the State Government and the State Government approved of the said order on August 24, 1971. On September 21, 1971, the Government placed the petitioners case before the Advisory Board. On that day, the Government received a representation made by the petitioner, which representation was considered by the Government and was rejected by it, on October 8, 1971. The Advisory Board submitted its report to the Government, on November 5, 1971, holding that there was sufficient cause justifying the said order and the petitioners detention thereunder. The Government thereafter confirmed the said detention order on November 18, 1971 and communicated that decision to the petitioner the next day.3. On these facts Mr. Goswami, appearing amicus curiae for the petitioner, frankly conceded that he was not in a position to discover any legal infirmity either in the said order or the various steps taken by the detaining authorities following that order. 4. He, however, raised two contentions in his challenge to the validity of the impugned order and the petitioners detention thereunder. His first contention was that ground No. 2 of the grounds of detention did not relate to the question of maintenance of public order and at best could have relation to the question of maintenance of law and order. Ground No. 2 runs as follows : "On June 28, 1971 at about 19.30 hours you and some of your associates being armed with deadly weapons raided the houses of Jitendra Nath Ghosh and Bankim Chandra Dutta both of Natun Bazar, P. S. Bashirhat and forcibly snatched away their D. B. guns after putting the inmates of the house into instant fear of death and grievous hurt. You thereby created much panic in the locality and disturbed public order." The argument was that these allegations amounted at best to threats to individuals with a view to rob them of their double barrelled guns and that since the said alleged acts were committed not in any public place but within the two houses, they could not fall within the realm of public order. That ground therefore, was extraneous to the act, and being so, vitiated the subjective satisfaction said to have been reached by the detaining authority. In support of the argument counsel relied on Pushkar Mukherjee v. State of West Bengal ((1969) 2 SCR 635 : (1969) 1 SCC 10 ). and Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498 : AIR 1972 SC 665 ). 5. In the view, however, we take on the second contention raised by counsel, which we will immediately set out, it is not necessary for us to examine and decide this contention. 6. As stated earlier, the second ground for detention was in respect of the incident alleged to have taken place on June 28, 1971 when the petitioner accompanied by some of his companions was said to have raided the houses of the said Jitendra Nath Ghosh and Bankim Chandra Dutta and snatched away guns belonging to them. The petitioners contention was that this allegation was false and baseless since he could not have committed the aforesaid acts as he was actually in police custody on that day. This factual contention was first taken by him in his representation to the Government in which he had specifically stated that he was arrested by the police on June 27, 1971 and was in police custody on June 28, 1971, the day when be was supposed to have committed the acts alleged in ground No. 2 of the grounds for detention. In the present writ petition, he once again raised the identical contention stating that he was arrested on June 27, 1971 by Bashirhat police was sent to Bashirhat jail and from there to Alipore jail, and finally to the Dun Dum Central Jail. 7. The State Government had thus clear notice of the factual contention raised by the petitioner, first, in his representation and again in this writ petition. If the petitioners contention were to be accepted, ground No. 2 must necessarily be held to be baseless as it would be obviously impossible for the petitioner to have committed the acts alleged in that ground, a ground upon which the detaining authority was said to have reached his subjective satisfaction that it was necessary to detain him with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. That satisfaction was clearly arrived at inter alia from the acts alleged to have been committed by the petitioner on June 28, 1971. 8. The only answer to such a specific plea in the Governments counter-affidavit was a bare denial of "various facts and allegations stated by the petitioner in his writ petition", and an equally bare assertion that the impugned order was made bona fide and in accordance with law. Such a vague answer is neither a proper nor an adequate reply in disproof of the specific allegation made twice by the petitioner. That allegation, therefore, remains unanswered and must consequently be accepted in the absence of any cogent reply thereto. 9. Ground No. 2, consequently, must be held to be one upon which the District Magistrate could not possibly base his subjective satisfaction required by the Act. It is by now well-settled that in cases dependent on subjective satisfaction if it is found that one of the grounds for detention is extraneous or is factually baseless, the order must fail, since it is impossible in such cases to predicate upon which of the grounds the concerned authority had reached its satisfaction or whether it would have reached the satisfaction without or irrespective of the ground which fails. That being the position, we must sustain the petitioners contention that the order was bad and so too his detention. | 1[ds]Ground No. 2 runs as follows :"On June 28, 1971 at about 19.30 hours you and some of your associates being armed with deadly weapons raided the houses of Jitendra Nath Ghosh and Bankim Chandra Dutta both of Natun Bazar, P. S. Bashirhat and forcibly snatched away their D. B. guns after putting the inmates of the house into instant fear of death and grievous hurt. You thereby created much panic in the locality and disturbed public order."The argument was that these allegations amounted at best to threats to individuals with a view to rob them of their double barrelled guns and that since the said alleged acts were committed not in any public place but within the two houses, they could not fall within the realm of public order. That ground therefore, was extraneous to the act, and being so, vitiated the subjective satisfaction said to have been reached by the detaining authority. In support of the argument counsel relied on Pushkar Mukherjee v. State of West Bengal ((1969) 2 SCR 635 : (1969) 1 SCC 10 ). and Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498 : AIR 1972 SC 665 )5. In the view, however, we take on the second contention raised by counsel, which we will immediately set out, it is not necessary for us to examine and decide this contention6. As stated earlier, the second ground for detention was in respect of the incident alleged to have taken place on June 28, 1971 when the petitioner accompanied by some of his companions was said to have raided the houses of the said Jitendra Nath Ghosh and Bankim Chandra Dutta and snatched away guns belonging to them. The petitioners contention was that this allegation was false and baseless since he could not have committed the aforesaid acts as he was actually in police custody on that day. This factual contention was first taken by him in his representation to the Government in which he had specifically stated that he was arrested by the police on June 27, 1971 and was in police custody on June 28, 1971, the day when be was supposed to have committed the acts alleged in ground No. 2 of the grounds for detention. In the present writ petition, he once again raised the identical contention stating that he was arrested on June 27, 1971 by Bashirhat police was sent to Bashirhat jail and from there to Alipore jail, and finally to the Dun Dum Central Jail7. The State Government had thus clear notice of the factual contention raised by the petitioner, first, in his representation and again in this writ petition. If the petitioners contention were to be accepted, ground No. 2 must necessarily be held to be baseless as it would be obviously impossible for the petitioner to have committed the acts alleged in that ground, a ground upon which the detaining authority was said to have reached his subjective satisfaction that it was necessary to detain him with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. That satisfaction was clearly arrived at inter alia from the acts alleged to have been committed by the petitioner on June 28, 19718. The only answer to such a specific plea in the Governmentst was a bare denial of "various facts and allegations stated by the petitioner in his writ petition", and an equally bare assertion that the impugned order was made bona fide and in accordance with law. Such a vague answer is neither a proper nor an adequate reply in disproof of the specific allegation made twice by the petitioner. That allegation, therefore, remains unanswered and must consequently be accepted in the absence of any cogent reply thereto9. Ground No. 2, consequently, must be held to be one upon which the District Magistrate could not possibly base his subjective satisfaction required by the Act. It is by nowd that in cases dependent on subjective satisfaction if it is found that one of the grounds for detention is extraneous or is factually baseless, the order must fail, since it is impossible in such cases to predicate upon which of the grounds the concerned authority had reached its satisfaction or whether it would have reached the satisfaction without or irrespective of the ground which fails. That being the position, we must sustain the petitioners contention that the order was bad and so too his detention. | 1 | 1,278 | 819 | ### Instruction:
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arrested on August 31, 1971 and detained in jail. At the time of the arrest he was served with the grounds for his detention. on August 19, 1971, the District Magistrate reported the petitioners case to the State Government and the State Government approved of the said order on August 24, 1971. On September 21, 1971, the Government placed the petitioners case before the Advisory Board. On that day, the Government received a representation made by the petitioner, which representation was considered by the Government and was rejected by it, on October 8, 1971. The Advisory Board submitted its report to the Government, on November 5, 1971, holding that there was sufficient cause justifying the said order and the petitioners detention thereunder. The Government thereafter confirmed the said detention order on November 18, 1971 and communicated that decision to the petitioner the next day.3. On these facts Mr. Goswami, appearing amicus curiae for the petitioner, frankly conceded that he was not in a position to discover any legal infirmity either in the said order or the various steps taken by the detaining authorities following that order. 4. He, however, raised two contentions in his challenge to the validity of the impugned order and the petitioners detention thereunder. His first contention was that ground No. 2 of the grounds of detention did not relate to the question of maintenance of public order and at best could have relation to the question of maintenance of law and order. Ground No. 2 runs as follows : "On June 28, 1971 at about 19.30 hours you and some of your associates being armed with deadly weapons raided the houses of Jitendra Nath Ghosh and Bankim Chandra Dutta both of Natun Bazar, P. S. Bashirhat and forcibly snatched away their D. B. guns after putting the inmates of the house into instant fear of death and grievous hurt. You thereby created much panic in the locality and disturbed public order." The argument was that these allegations amounted at best to threats to individuals with a view to rob them of their double barrelled guns and that since the said alleged acts were committed not in any public place but within the two houses, they could not fall within the realm of public order. That ground therefore, was extraneous to the act, and being so, vitiated the subjective satisfaction said to have been reached by the detaining authority. In support of the argument counsel relied on Pushkar Mukherjee v. State of West Bengal ((1969) 2 SCR 635 : (1969) 1 SCC 10 ). and Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498 : AIR 1972 SC 665 ). 5. In the view, however, we take on the second contention raised by counsel, which we will immediately set out, it is not necessary for us to examine and decide this contention. 6. As stated earlier, the second ground for detention was in respect of the incident alleged to have taken place on June 28, 1971 when the petitioner accompanied by some of his companions was said to have raided the houses of the said Jitendra Nath Ghosh and Bankim Chandra Dutta and snatched away guns belonging to them. The petitioners contention was that this allegation was false and baseless since he could not have committed the aforesaid acts as he was actually in police custody on that day. This factual contention was first taken by him in his representation to the Government in which he had specifically stated that he was arrested by the police on June 27, 1971 and was in police custody on June 28, 1971, the day when be was supposed to have committed the acts alleged in ground No. 2 of the grounds for detention. In the present writ petition, he once again raised the identical contention stating that he was arrested on June 27, 1971 by Bashirhat police was sent to Bashirhat jail and from there to Alipore jail, and finally to the Dun Dum Central Jail. 7. The State Government had thus clear notice of the factual contention raised by the petitioner, first, in his representation and again in this writ petition. If the petitioners contention were to be accepted, ground No. 2 must necessarily be held to be baseless as it would be obviously impossible for the petitioner to have committed the acts alleged in that ground, a ground upon which the detaining authority was said to have reached his subjective satisfaction that it was necessary to detain him with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. That satisfaction was clearly arrived at inter alia from the acts alleged to have been committed by the petitioner on June 28, 1971. 8. The only answer to such a specific plea in the Governments counter-affidavit was a bare denial of "various facts and allegations stated by the petitioner in his writ petition", and an equally bare assertion that the impugned order was made bona fide and in accordance with law. Such a vague answer is neither a proper nor an adequate reply in disproof of the specific allegation made twice by the petitioner. That allegation, therefore, remains unanswered and must consequently be accepted in the absence of any cogent reply thereto. 9. Ground No. 2, consequently, must be held to be one upon which the District Magistrate could not possibly base his subjective satisfaction required by the Act. It is by now well-settled that in cases dependent on subjective satisfaction if it is found that one of the grounds for detention is extraneous or is factually baseless, the order must fail, since it is impossible in such cases to predicate upon which of the grounds the concerned authority had reached its satisfaction or whether it would have reached the satisfaction without or irrespective of the ground which fails. That being the position, we must sustain the petitioners contention that the order was bad and so too his detention.
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Ground No. 2 runs as follows :"On June 28, 1971 at about 19.30 hours you and some of your associates being armed with deadly weapons raided the houses of Jitendra Nath Ghosh and Bankim Chandra Dutta both of Natun Bazar, P. S. Bashirhat and forcibly snatched away their D. B. guns after putting the inmates of the house into instant fear of death and grievous hurt. You thereby created much panic in the locality and disturbed public order."The argument was that these allegations amounted at best to threats to individuals with a view to rob them of their double barrelled guns and that since the said alleged acts were committed not in any public place but within the two houses, they could not fall within the realm of public order. That ground therefore, was extraneous to the act, and being so, vitiated the subjective satisfaction said to have been reached by the detaining authority. In support of the argument counsel relied on Pushkar Mukherjee v. State of West Bengal ((1969) 2 SCR 635 : (1969) 1 SCC 10 ). and Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498 : AIR 1972 SC 665 )5. In the view, however, we take on the second contention raised by counsel, which we will immediately set out, it is not necessary for us to examine and decide this contention6. As stated earlier, the second ground for detention was in respect of the incident alleged to have taken place on June 28, 1971 when the petitioner accompanied by some of his companions was said to have raided the houses of the said Jitendra Nath Ghosh and Bankim Chandra Dutta and snatched away guns belonging to them. The petitioners contention was that this allegation was false and baseless since he could not have committed the aforesaid acts as he was actually in police custody on that day. This factual contention was first taken by him in his representation to the Government in which he had specifically stated that he was arrested by the police on June 27, 1971 and was in police custody on June 28, 1971, the day when be was supposed to have committed the acts alleged in ground No. 2 of the grounds for detention. In the present writ petition, he once again raised the identical contention stating that he was arrested on June 27, 1971 by Bashirhat police was sent to Bashirhat jail and from there to Alipore jail, and finally to the Dun Dum Central Jail7. The State Government had thus clear notice of the factual contention raised by the petitioner, first, in his representation and again in this writ petition. If the petitioners contention were to be accepted, ground No. 2 must necessarily be held to be baseless as it would be obviously impossible for the petitioner to have committed the acts alleged in that ground, a ground upon which the detaining authority was said to have reached his subjective satisfaction that it was necessary to detain him with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. That satisfaction was clearly arrived at inter alia from the acts alleged to have been committed by the petitioner on June 28, 19718. The only answer to such a specific plea in the Governmentst was a bare denial of "various facts and allegations stated by the petitioner in his writ petition", and an equally bare assertion that the impugned order was made bona fide and in accordance with law. Such a vague answer is neither a proper nor an adequate reply in disproof of the specific allegation made twice by the petitioner. That allegation, therefore, remains unanswered and must consequently be accepted in the absence of any cogent reply thereto9. Ground No. 2, consequently, must be held to be one upon which the District Magistrate could not possibly base his subjective satisfaction required by the Act. It is by nowd that in cases dependent on subjective satisfaction if it is found that one of the grounds for detention is extraneous or is factually baseless, the order must fail, since it is impossible in such cases to predicate upon which of the grounds the concerned authority had reached its satisfaction or whether it would have reached the satisfaction without or irrespective of the ground which fails. That being the position, we must sustain the petitioners contention that the order was bad and so too his detention.
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Commr.Of Income Central-Ii Vs. Suresh N.Gupta | prescribed in the Finance Act, 2001, but he cannot claim that the amount of income-tax so determined should not be increased by addition of the surcharge. Therefore, in our opinion, the AO has rightly imposed surcharge at 17% on the undisclosed income of the assessee in this case, particularly when the search was carried out on 17.1.2001. 23. As stated above, Section 158BA(2) read with Section 4 of the 1961 Act looks at Section 113 for the imposition rate at which tax has to be imposed in the case of block assessment. That rate is 60%. That rate is fixed by the 1961 Act itself. That rate has been stipulated by Parliament not with a view to oust the levy of surcharge but to make the levy cost-effective and easy. Therefore, a flat rate is prescribed. The difficulty in block assessment is that one has to correlate the undisclosed income to different years in which income is earned, hence, Parliament has fixed a flat rate of tax in Section 113 [See: (1995) 212 ITR (St.) 69]. On the contrary, a bare perusal of various Finance Acts starting from 1999 indicates that Parliament was aware of rate of tax prescribed by Section 113 and yet in the various Finance Acts, Parliament has sought to levy surcharge on the tax in the case of block assessment. In the present case, the AO has applied the rate of surcharge at 17% which rate finds place in Para A of Part I of the First Schedule to the said FA of 2001, therefore, surcharge leviable under the FA was a distinct charge, not dependant for its leviability on the assessee’s liability to pay income-tax but on assessed tax.24. For the aforestated reasons, we hold that even without the proviso to Section 113 (inserted vide FA 2002 w.e.f. 1.6.2002), the FA 2001 was applicable to block assessment under Chapter XIV-B in relation to the search initiated on 17.1.2001 and accordingly surcharge was leviable on the tax amounting to Rs.97,456/- at 17% amounting to Rs.16504/-. We accordingly answer the above question in favour of the revenue and against the assessee.Whether insertion of the proviso in Section 113 by the Finance Act, 2002 was applicable to search up to 31.5.2002:25. In view of our findings on the first point, strictly speaking, we are not required to examine this question. However, it has been vehemently urged on behalf of the assessee that the said proviso cannot operate retrospectively. This argument is founded on the basis that until the amendment in Section 113 w.e.f. 1.6.2002, there was inconsistency with regard to levy of surcharge. According to the assessee, the question which usually bothered both the assessee and the Department was whether surcharge was leviable with reference to the rates provided for in the FA of the year in which the search was initiated or the year in which the search was concluded or the year in which the block assessment proceedings under Section 158BC were initiated or the year in which block assessment order was passed. According to the assessee, there was a conference of Chief Commissioners which had suggested to the Central Government to amend Section 113 with retrospective effect. However, despite such recommendations, the Central Government inserted the proviso in Section 113 only with effect from 1.6.2002. Therefore, according to the assessee, the proviso cannot be interpreted as retrospective.26. We find no merit in the above arguments. Both, the Finance Acts of 2000 and 2001, indicated that a substantive charge was created in respect of the income-tax to be levied. Both these Acts prescribed the rates of surcharge. The said surcharge did not depend for its leviability on the assessee’s liability to pay income-tax but on the assessed tax. The assessee has relied upon the above anomalies in support of their contention that such anomalies made the charge ineffective. In our view, such submission amounts to begging the question. According to the assessee, prior to 1.6.2002, the position was ambiguous as it was not clear even to the Department as to which year’s FA would be applicable. To clear this doubt precisely, the proviso has been inserted in Section 113 by which it is indicated that the FA of the year in which the search was initiated would apply. Therefore, in our view, the said proviso was clarificatory in nature. In taxation, the Legislation of the type indicated by the proviso has to be read strictly. There is no question of retrospective effect. The proviso only clarifies that out of the four dates, Parliament has opted for the date, namely the year in which the search is initiated, which date would be relevant for applicability of a particular FA. Therefore, we have to read the proviso as it stands.27. There is one more reason for rejecting the above submission. Prior to 1.6.2002, in several cases, tax was prescribed sometimes in the 1961 Act and sometimes in the FA and often in both. This made liability uncertain. In the present case, however, the rate of tax in case of block assessment at 60% was prescribed by Section 113 but the year of the FA imposing surcharge was not stipulated. This resulted in the above four ambiguities. Therefore, clarification was needed. The proviso was curative in nature. Hence, the proviso inserted in Section 113 merely clarifies that out of the above four dates, the relevant date for applicability of the FA would be the year in which the search stood initiated under Section 158BC.28. In the case of Allied Motors (P) Ltd. v. Commissioner of Income-tax [(1997) 224 ITR 677 (SC)] this Court observed as follows: “A proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation, so that a reasonable interpretation can be given to the section as a whole.” | 1[ds]23. As stated above, Section 158BA(2) read with Section 4 of the 1961 Act looks at Section 113 for the imposition rate at which tax has to be imposed in the case of block assessment. That rate is 60%. That rate is fixed by the 1961 Act itself. That rate has been stipulated by Parliament not with a view to oust the levy of surcharge but to make the levy cost-effective and easy. Therefore, a flat rate is prescribed. The difficulty in block assessment is that one has to correlate the undisclosed income to different years in which income is earned, hence, Parliament has fixed a flat rate of tax in Section 113 [See: (1995) 212 ITR (St.) 69]. On the contrary, a bare perusal of various Finance Acts starting from 1999 indicates that Parliament was aware of rate of tax prescribed by Section 113 and yet in the various Finance Acts, Parliament has sought to levy surcharge on the tax in the case of block assessment. In the present case, the AO has applied the rate of surcharge at 17% which rate finds place in Para A of Part I of the First Schedule to the said FA of 2001, therefore, surcharge leviable under the FA was a distinct charge, not dependant for its leviability on theliability to pay income-tax but on assessed tax.24. For the aforestated reasons, we hold that even without the proviso to Section 113 (inserted vide FA 2002 w.e.f. 1.6.2002), the FA 2001 was applicable to block assessment under Chapter XIV-B in relation to the search initiated on 17.1.2001 and accordingly surcharge was leviable on the tax amounting to Rs.97,456/- at 17% amounting to Rs.16504/-. We accordingly answer the above question in favour of the revenue and against the assessee.Whether insertion of the proviso in Section 113 by the Finance Act, 2002 was applicable to search up to 31.5.2002:25. In view of our findings on the first point, strictly speaking, we are not required to examine this question. However, it has been vehemently urged on behalf of the assessee that the said proviso cannot operate retrospectively. This argument is founded on the basis that until the amendment in Section 113 w.e.f. 1.6.2002, there was inconsistency with regard to levy of surcharge. According to the assessee, the question which usually bothered both the assessee and the Department was whether surcharge was leviable with reference to the rates provided for in the FA of the year in which the search was initiated or the year in which the search was concluded or the year in which the block assessment proceedings under Section 158BC were initiated or the year in which block assessment order was passed. According to the assessee, there was a conference of Chief Commissioners which had suggested to the Central Government to amend Section 113 with retrospective effect. However, despite such recommendations, the Central Government inserted the proviso in Section 113 only with effect from 1.6.2002. Therefore, according to the assessee, the proviso cannot be interpreted as retrospective.26. We find no merit in the above arguments. Both, the Finance Acts of 2000 and 2001, indicated that a substantive charge was created in respect of the income-tax to be levied. Both these Acts prescribed the rates of surcharge. The said surcharge did not depend for its leviability on theliability to pay income-tax but on the assessed tax. The assessee has relied upon the above anomalies in support of their contention that such anomalies made the charge ineffective. In our view, such submission amounts to begging the question. According to the assessee, prior to 1.6.2002, the position was ambiguous as it was not clear even to the Department as to whichFA would be applicable. To clear this doubt precisely, the proviso has been inserted in Section 113 by which it is indicated that the FA of the year in which the search was initiated would apply. Therefore, in our view, the said proviso was clarificatory in nature. In taxation, the Legislation of the type indicated by the proviso has to be read strictly. There is no question of retrospective effect. The proviso only clarifies that out of the four dates, Parliament has opted for the date, namely the year in which the search is initiated, which date would be relevant for applicability of a particular FA. Therefore, we have to read the proviso as it stands.27. There is one more reason for rejecting the above submission. Prior to 1.6.2002, in several cases, tax was prescribed sometimes in the 1961 Act and sometimes in the FA and often in both. This made liability uncertain. In the present case, however, the rate of tax in case of block assessment at 60% was prescribed by Section 113 but the year of the FA imposing surcharge was not stipulated. This resulted in the above four ambiguities. Therefore, clarification was needed. The proviso was curative in nature. Hence, the proviso inserted in Section 113 merely clarifies that out of the above four dates, the relevant date for applicability of the FA would be the year in which the search stood initiated under Section 158BC.28. In the case of Allied Motors (P) Ltd. v. Commissioner of Income-tax [(1997) 224 ITR 677 (SC)] this Court observed asproviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation, so that a reasonable interpretation can be given to the section as a | 1 | 8,410 | 1,050 | ### 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:
prescribed in the Finance Act, 2001, but he cannot claim that the amount of income-tax so determined should not be increased by addition of the surcharge. Therefore, in our opinion, the AO has rightly imposed surcharge at 17% on the undisclosed income of the assessee in this case, particularly when the search was carried out on 17.1.2001. 23. As stated above, Section 158BA(2) read with Section 4 of the 1961 Act looks at Section 113 for the imposition rate at which tax has to be imposed in the case of block assessment. That rate is 60%. That rate is fixed by the 1961 Act itself. That rate has been stipulated by Parliament not with a view to oust the levy of surcharge but to make the levy cost-effective and easy. Therefore, a flat rate is prescribed. The difficulty in block assessment is that one has to correlate the undisclosed income to different years in which income is earned, hence, Parliament has fixed a flat rate of tax in Section 113 [See: (1995) 212 ITR (St.) 69]. On the contrary, a bare perusal of various Finance Acts starting from 1999 indicates that Parliament was aware of rate of tax prescribed by Section 113 and yet in the various Finance Acts, Parliament has sought to levy surcharge on the tax in the case of block assessment. In the present case, the AO has applied the rate of surcharge at 17% which rate finds place in Para A of Part I of the First Schedule to the said FA of 2001, therefore, surcharge leviable under the FA was a distinct charge, not dependant for its leviability on the assessee’s liability to pay income-tax but on assessed tax.24. For the aforestated reasons, we hold that even without the proviso to Section 113 (inserted vide FA 2002 w.e.f. 1.6.2002), the FA 2001 was applicable to block assessment under Chapter XIV-B in relation to the search initiated on 17.1.2001 and accordingly surcharge was leviable on the tax amounting to Rs.97,456/- at 17% amounting to Rs.16504/-. We accordingly answer the above question in favour of the revenue and against the assessee.Whether insertion of the proviso in Section 113 by the Finance Act, 2002 was applicable to search up to 31.5.2002:25. In view of our findings on the first point, strictly speaking, we are not required to examine this question. However, it has been vehemently urged on behalf of the assessee that the said proviso cannot operate retrospectively. This argument is founded on the basis that until the amendment in Section 113 w.e.f. 1.6.2002, there was inconsistency with regard to levy of surcharge. According to the assessee, the question which usually bothered both the assessee and the Department was whether surcharge was leviable with reference to the rates provided for in the FA of the year in which the search was initiated or the year in which the search was concluded or the year in which the block assessment proceedings under Section 158BC were initiated or the year in which block assessment order was passed. According to the assessee, there was a conference of Chief Commissioners which had suggested to the Central Government to amend Section 113 with retrospective effect. However, despite such recommendations, the Central Government inserted the proviso in Section 113 only with effect from 1.6.2002. Therefore, according to the assessee, the proviso cannot be interpreted as retrospective.26. We find no merit in the above arguments. Both, the Finance Acts of 2000 and 2001, indicated that a substantive charge was created in respect of the income-tax to be levied. Both these Acts prescribed the rates of surcharge. The said surcharge did not depend for its leviability on the assessee’s liability to pay income-tax but on the assessed tax. The assessee has relied upon the above anomalies in support of their contention that such anomalies made the charge ineffective. In our view, such submission amounts to begging the question. According to the assessee, prior to 1.6.2002, the position was ambiguous as it was not clear even to the Department as to which year’s FA would be applicable. To clear this doubt precisely, the proviso has been inserted in Section 113 by which it is indicated that the FA of the year in which the search was initiated would apply. Therefore, in our view, the said proviso was clarificatory in nature. In taxation, the Legislation of the type indicated by the proviso has to be read strictly. There is no question of retrospective effect. The proviso only clarifies that out of the four dates, Parliament has opted for the date, namely the year in which the search is initiated, which date would be relevant for applicability of a particular FA. Therefore, we have to read the proviso as it stands.27. There is one more reason for rejecting the above submission. Prior to 1.6.2002, in several cases, tax was prescribed sometimes in the 1961 Act and sometimes in the FA and often in both. This made liability uncertain. In the present case, however, the rate of tax in case of block assessment at 60% was prescribed by Section 113 but the year of the FA imposing surcharge was not stipulated. This resulted in the above four ambiguities. Therefore, clarification was needed. The proviso was curative in nature. Hence, the proviso inserted in Section 113 merely clarifies that out of the above four dates, the relevant date for applicability of the FA would be the year in which the search stood initiated under Section 158BC.28. In the case of Allied Motors (P) Ltd. v. Commissioner of Income-tax [(1997) 224 ITR 677 (SC)] this Court observed as follows: “A proviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation, so that a reasonable interpretation can be given to the section as a whole.”
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23. As stated above, Section 158BA(2) read with Section 4 of the 1961 Act looks at Section 113 for the imposition rate at which tax has to be imposed in the case of block assessment. That rate is 60%. That rate is fixed by the 1961 Act itself. That rate has been stipulated by Parliament not with a view to oust the levy of surcharge but to make the levy cost-effective and easy. Therefore, a flat rate is prescribed. The difficulty in block assessment is that one has to correlate the undisclosed income to different years in which income is earned, hence, Parliament has fixed a flat rate of tax in Section 113 [See: (1995) 212 ITR (St.) 69]. On the contrary, a bare perusal of various Finance Acts starting from 1999 indicates that Parliament was aware of rate of tax prescribed by Section 113 and yet in the various Finance Acts, Parliament has sought to levy surcharge on the tax in the case of block assessment. In the present case, the AO has applied the rate of surcharge at 17% which rate finds place in Para A of Part I of the First Schedule to the said FA of 2001, therefore, surcharge leviable under the FA was a distinct charge, not dependant for its leviability on theliability to pay income-tax but on assessed tax.24. For the aforestated reasons, we hold that even without the proviso to Section 113 (inserted vide FA 2002 w.e.f. 1.6.2002), the FA 2001 was applicable to block assessment under Chapter XIV-B in relation to the search initiated on 17.1.2001 and accordingly surcharge was leviable on the tax amounting to Rs.97,456/- at 17% amounting to Rs.16504/-. We accordingly answer the above question in favour of the revenue and against the assessee.Whether insertion of the proviso in Section 113 by the Finance Act, 2002 was applicable to search up to 31.5.2002:25. In view of our findings on the first point, strictly speaking, we are not required to examine this question. However, it has been vehemently urged on behalf of the assessee that the said proviso cannot operate retrospectively. This argument is founded on the basis that until the amendment in Section 113 w.e.f. 1.6.2002, there was inconsistency with regard to levy of surcharge. According to the assessee, the question which usually bothered both the assessee and the Department was whether surcharge was leviable with reference to the rates provided for in the FA of the year in which the search was initiated or the year in which the search was concluded or the year in which the block assessment proceedings under Section 158BC were initiated or the year in which block assessment order was passed. According to the assessee, there was a conference of Chief Commissioners which had suggested to the Central Government to amend Section 113 with retrospective effect. However, despite such recommendations, the Central Government inserted the proviso in Section 113 only with effect from 1.6.2002. Therefore, according to the assessee, the proviso cannot be interpreted as retrospective.26. We find no merit in the above arguments. Both, the Finance Acts of 2000 and 2001, indicated that a substantive charge was created in respect of the income-tax to be levied. Both these Acts prescribed the rates of surcharge. The said surcharge did not depend for its leviability on theliability to pay income-tax but on the assessed tax. The assessee has relied upon the above anomalies in support of their contention that such anomalies made the charge ineffective. In our view, such submission amounts to begging the question. According to the assessee, prior to 1.6.2002, the position was ambiguous as it was not clear even to the Department as to whichFA would be applicable. To clear this doubt precisely, the proviso has been inserted in Section 113 by which it is indicated that the FA of the year in which the search was initiated would apply. Therefore, in our view, the said proviso was clarificatory in nature. In taxation, the Legislation of the type indicated by the proviso has to be read strictly. There is no question of retrospective effect. The proviso only clarifies that out of the four dates, Parliament has opted for the date, namely the year in which the search is initiated, which date would be relevant for applicability of a particular FA. Therefore, we have to read the proviso as it stands.27. There is one more reason for rejecting the above submission. Prior to 1.6.2002, in several cases, tax was prescribed sometimes in the 1961 Act and sometimes in the FA and often in both. This made liability uncertain. In the present case, however, the rate of tax in case of block assessment at 60% was prescribed by Section 113 but the year of the FA imposing surcharge was not stipulated. This resulted in the above four ambiguities. Therefore, clarification was needed. The proviso was curative in nature. Hence, the proviso inserted in Section 113 merely clarifies that out of the above four dates, the relevant date for applicability of the FA would be the year in which the search stood initiated under Section 158BC.28. In the case of Allied Motors (P) Ltd. v. Commissioner of Income-tax [(1997) 224 ITR 677 (SC)] this Court observed asproviso which is inserted to remedy unintended consequences and to make the provision workable, a proviso which supplies an obvious omission in the section and is required to be read into the section to give the section a reasonable interpretation, requires to be treated as retrospective in operation, so that a reasonable interpretation can be given to the section as a
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Titaghur Paper Mills Company Limited and Another Vs. State of Orissa and Others | it confirmed what ex facie was a nullity for reasons aforementioned.We find no justification for extending the principles laid down in Mohammad Nooh case, to a case like the present where there is an assessment made by the learned Sales Tax Officer under the Act. In Raleigh Investment Company case, the Privy Council rightly observed that the phrase "made under the Act" described the provenance of the assessment; it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test.10. The decision in Mohammad Nooh case, is clearly distinguishable as in that case there was total lack of jurisdiction. There is no suggestion that the learned Sales Tax Officer had no jurisdiction to make an assessment. Nor can it be contended that he had acted in breach of rules of natural justice. There is no denying the fact that the petitioner was served with a notice of the proceedings under Rule 12 (5) of the Rules and sub-section (4) of Section 12 of the Act. The impugned orders clearly show that the petitioners were afforded sufficient opportunity to place their case. Merely because the learned Sales Tax Officer refused to grant any further adjournment and decided to proceed to best judgment, it cannot be said that he acted in violation of the rules of natural justice. The question whether another adjournment should have been granted or not was within the discretion of the learned Sales Tax Officer and is a matter which can properly be raised only in an appeal under sub-section (1) of Section 23 of the Act. All that this Court laid down in Mohammad Nooh case (1958 scr 595 : air 1958 SC 86 : 1958 SCJ 242 ), is that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law; in other words, it does not bar the jurisdiction of the court.11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rules was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CBNS 3336, 356 : 28 LJCP 242 : 141 ER 486 : 7 WR 464) in the following passage :There are three classes of cases in which a liability may be established founded upon statute.... But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.The rule laid down in this passage was approved by the House of Lords in Neville v. London, Express Newspapers Ltd.(1919 AC 368 : 1919 All ER Rep 61 : 88 LJKB 282 : 120 LT 299) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532 : 104 LJ PC 82 : 153 LT 441 (PC)) and Secretary of State v. Mask & Co. (AIR 1940 PC 105 : 67 IA 222 : 188 IC 231). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.12. Furthermore, the Act provides for an adequate safeguard against an arbitrary or unjust assessment. The petitioners have a right to prefer an appeal under sub-section (1) of Section 23 of the Act subject to their payment of the admitted amount of tax as enjoined by the proviso thereto. As regards the disputed amount of tax, the petitioners have the remedy of applying for stay of recovery to the Commissioner of Sales Tax under clause (a) of the second proviso to sub-section (5) of Section 13 of the Act which runs :"Provided further that -(a) when the dealer or person, as the case may be, has presented an appeal under sub-section (1) of Section 23, the Commissioner may, on an application in that behalf filed by such dealer or person within thirty days from the date of receipt by him of the notice under sub-section (4), in his discretion, stay the recovery of the amount in respect of which such notice has been issued or any portion thereof, for such period and subject to such conditions as the Commissioner thinks fit;"13. The petitioners are at liberty to make an application for stay of the disputed amount and the Commissioner will decide whether or not there should be such stay on such terms and conditions as he thinks fit, looking to the nature of the demand raised in the facts and circumstances of the present case. | 0[ds]10. The decision in Mohammad Nooh case, is clearly distinguishable as in that case there was total lack of jurisdiction. There is no suggestion that the learned Sales Tax Officer had no jurisdiction to make an assessment. Nor can it be contended that he had acted in breach of rules of natural justice. There is no denying the fact that the petitioner was served with a notice of the proceedings under Rule 12 (5) of the Rules and sub-section (4) of Section 12 of the Act. The impugned orders clearly show that the petitioners were afforded sufficient opportunity to place their case. Merely because the learned Sales Tax Officer refused to grant any further adjournment and decided to proceed to best judgment, it cannot be said that he acted in violation of the rules of natural justice. The question whether another adjournment should have been granted or not was within the discretion of the learned Sales Tax Officer and is a matter which can properly be raised only in an appeal under sub-section (1) of Section 23 of the Act. All that this Court laid down in Mohammad Nooh case (1958 scr 595 : air 1958 SC 86 : 1958 SCJ 242 ), is that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law; in other words, it does not bar the jurisdiction of the court.11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rules was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CBNS 3336, 356 : 28 LJCP 242 : 141 ER 486 : 7 WR 464) in the following passageare three classes of cases in which a liability may be established founded upon statute.... But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adheredrule laid down in this passage was approved by the House of Lords in Neville v. London, Express Newspapers Ltd.(1919 AC 368 : 1919 All ER Rep 61 : 88 LJKB 282 : 120 LT 299) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532 : 104 LJ PC 82 : 153 LT 441 (PC)) and Secretary of State v. Mask & Co. (AIR 1940 PC 105 : 67 IA 222 : 188 IC 231). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.12. Furthermore, the Act provides for an adequate safeguard against an arbitrary or unjust assessment. The petitioners have a right to prefer an appeal under sub-section (1) of Section 23 of the Act subject to their payment of the admitted amount of tax as enjoined by the proviso thereto. As regards the disputed amount of tax, the petitioners have the remedy of applying for stay of recovery to the Commissioner of Sales Tax under clause (a) of the second proviso to sub-section (5) of Section 13 of the Act which runsfurther that -(a) when the dealer or person, as the case may be, has presented an appeal under sub-section (1) of Section 23, the Commissioner may, on an application in that behalf filed by such dealer or person within thirty days from the date of receipt by him of the notice under sub-section (4), in his discretion, stay the recovery of the amount in respect of which such notice has been issued or any portion thereof, for such period and subject to such conditions as the Commissioner thinks fit;The petitioners are at liberty to make an application for stay of the disputed amount and the Commissioner will decide whether or not there should be such stay on such terms and conditions as he thinks fit, looking to the nature of the demand raised in the facts and circumstances of the present case. | 0 | 3,878 | 990 | ### Instruction:
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it confirmed what ex facie was a nullity for reasons aforementioned.We find no justification for extending the principles laid down in Mohammad Nooh case, to a case like the present where there is an assessment made by the learned Sales Tax Officer under the Act. In Raleigh Investment Company case, the Privy Council rightly observed that the phrase "made under the Act" described the provenance of the assessment; it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test.10. The decision in Mohammad Nooh case, is clearly distinguishable as in that case there was total lack of jurisdiction. There is no suggestion that the learned Sales Tax Officer had no jurisdiction to make an assessment. Nor can it be contended that he had acted in breach of rules of natural justice. There is no denying the fact that the petitioner was served with a notice of the proceedings under Rule 12 (5) of the Rules and sub-section (4) of Section 12 of the Act. The impugned orders clearly show that the petitioners were afforded sufficient opportunity to place their case. Merely because the learned Sales Tax Officer refused to grant any further adjournment and decided to proceed to best judgment, it cannot be said that he acted in violation of the rules of natural justice. The question whether another adjournment should have been granted or not was within the discretion of the learned Sales Tax Officer and is a matter which can properly be raised only in an appeal under sub-section (1) of Section 23 of the Act. All that this Court laid down in Mohammad Nooh case (1958 scr 595 : air 1958 SC 86 : 1958 SCJ 242 ), is that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law; in other words, it does not bar the jurisdiction of the court.11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rules was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CBNS 3336, 356 : 28 LJCP 242 : 141 ER 486 : 7 WR 464) in the following passage :There are three classes of cases in which a liability may be established founded upon statute.... But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.The rule laid down in this passage was approved by the House of Lords in Neville v. London, Express Newspapers Ltd.(1919 AC 368 : 1919 All ER Rep 61 : 88 LJKB 282 : 120 LT 299) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532 : 104 LJ PC 82 : 153 LT 441 (PC)) and Secretary of State v. Mask & Co. (AIR 1940 PC 105 : 67 IA 222 : 188 IC 231). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.12. Furthermore, the Act provides for an adequate safeguard against an arbitrary or unjust assessment. The petitioners have a right to prefer an appeal under sub-section (1) of Section 23 of the Act subject to their payment of the admitted amount of tax as enjoined by the proviso thereto. As regards the disputed amount of tax, the petitioners have the remedy of applying for stay of recovery to the Commissioner of Sales Tax under clause (a) of the second proviso to sub-section (5) of Section 13 of the Act which runs :"Provided further that -(a) when the dealer or person, as the case may be, has presented an appeal under sub-section (1) of Section 23, the Commissioner may, on an application in that behalf filed by such dealer or person within thirty days from the date of receipt by him of the notice under sub-section (4), in his discretion, stay the recovery of the amount in respect of which such notice has been issued or any portion thereof, for such period and subject to such conditions as the Commissioner thinks fit;"13. The petitioners are at liberty to make an application for stay of the disputed amount and the Commissioner will decide whether or not there should be such stay on such terms and conditions as he thinks fit, looking to the nature of the demand raised in the facts and circumstances of the present case.
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### Explanation:
10. The decision in Mohammad Nooh case, is clearly distinguishable as in that case there was total lack of jurisdiction. There is no suggestion that the learned Sales Tax Officer had no jurisdiction to make an assessment. Nor can it be contended that he had acted in breach of rules of natural justice. There is no denying the fact that the petitioner was served with a notice of the proceedings under Rule 12 (5) of the Rules and sub-section (4) of Section 12 of the Act. The impugned orders clearly show that the petitioners were afforded sufficient opportunity to place their case. Merely because the learned Sales Tax Officer refused to grant any further adjournment and decided to proceed to best judgment, it cannot be said that he acted in violation of the rules of natural justice. The question whether another adjournment should have been granted or not was within the discretion of the learned Sales Tax Officer and is a matter which can properly be raised only in an appeal under sub-section (1) of Section 23 of the Act. All that this Court laid down in Mohammad Nooh case (1958 scr 595 : air 1958 SC 86 : 1958 SCJ 242 ), is that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than a rule of law; in other words, it does not bar the jurisdiction of the court.11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rules was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CBNS 3336, 356 : 28 LJCP 242 : 141 ER 486 : 7 WR 464) in the following passageare three classes of cases in which a liability may be established founded upon statute.... But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adheredrule laid down in this passage was approved by the House of Lords in Neville v. London, Express Newspapers Ltd.(1919 AC 368 : 1919 All ER Rep 61 : 88 LJKB 282 : 120 LT 299) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532 : 104 LJ PC 82 : 153 LT 441 (PC)) and Secretary of State v. Mask & Co. (AIR 1940 PC 105 : 67 IA 222 : 188 IC 231). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.12. Furthermore, the Act provides for an adequate safeguard against an arbitrary or unjust assessment. The petitioners have a right to prefer an appeal under sub-section (1) of Section 23 of the Act subject to their payment of the admitted amount of tax as enjoined by the proviso thereto. As regards the disputed amount of tax, the petitioners have the remedy of applying for stay of recovery to the Commissioner of Sales Tax under clause (a) of the second proviso to sub-section (5) of Section 13 of the Act which runsfurther that -(a) when the dealer or person, as the case may be, has presented an appeal under sub-section (1) of Section 23, the Commissioner may, on an application in that behalf filed by such dealer or person within thirty days from the date of receipt by him of the notice under sub-section (4), in his discretion, stay the recovery of the amount in respect of which such notice has been issued or any portion thereof, for such period and subject to such conditions as the Commissioner thinks fit;The petitioners are at liberty to make an application for stay of the disputed amount and the Commissioner will decide whether or not there should be such stay on such terms and conditions as he thinks fit, looking to the nature of the demand raised in the facts and circumstances of the present case.
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