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Khemchand Dayalji & Co Vs. Mohammedbhai Chandbhai | shall extend to and come into force in the City of Ahmedabad on and from the appointed day.By Section 18 it was provided :"The Presidency Small Cause Courts Act, 1882 (XV of 1882), and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay LVII of 1947), shall in their application to the City of Ahmedabad stand amended in the manner and to the extent specified in the Schedule."By Section 19 it was provided :"With effect on and from the appointed day * * * the Provincial Small Cause Courts Act, 1887 (IX of 1887), and all rules, notifications and orders made thereunder shall cease to apply to, or be in force, in the City of Ahmedabad, * * *". By the Schedule certain amendments were made in the Presidency Small Cause Courts Act, 1882, in its application to the City of Ahmedabad. By Clause 13 of the Schedule, Section 50 of the Presidency Small Cause Courts Act was to apply to every place within the City of Ahmedabad. Certain amendments were also made in Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and in sub-section (1) of Section 28, before Clause (aa) the following clause was inserted."(a) in the City of Ahmedabad the Court of Small Causes of Ahmedabad,".7. By the enactment of the Ahmedabad City Courts Act, 1961, the proceedings before the Court of Small Causes at Ahmedabad were governed by that Act and by virtue of the amendment made in Section 28 of Bombay Act 57 of 1947 it became a Court of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act. Being a Court governed by the Presidency Small Cause Courts Act, the Ahmedabad Court of Small Causes was competent to exercise, subject to the Ahmedabad City Courts Act all the powers which a Presidency Small Cause Court may exercise. Power to issue a distress warrant being expressly conferred by Section 53 of the Presidency Small Cause courts Act upon the Courts governed by it, the Court of Small Causes, Ahmedabad, was competent to exercise that power.8. Rule 5 was framed under the Bombay Act 57 of 1947 in exercise of the authority conferred by Section 49 (2) (iii). After the enactment of the Ahmedabad City Courts Act, 1961, Rule 5 as originally framed by the Government of Bombay continued in force by virtue of Section 87 of the Bombay Reorganization Act 11 of 1960, and applied to the Ahmedabad Small Cause Court. When Rule 5 was framed under Bombay Act 57 of 1947 it was not ultra vires, and it is not shown to have become ultra vires after the enactment of the Ahmedabad City Courts Act in its application to the City of Ahmedabad.9. The argument that Section 28 sets up a new set of Courts with special Powers and jurisdiction is without substance. Section 28 merely confers upon the existing Courts exclusive jurisdiction the respect of matters relating in possession of premises and recovery of rent and to determine claims and questions arising under that Act. On that account it does not become a Special Court; it is a Court which is competent to exercise all the powers which are conferred upon it by virtue of its constitution under the statute which governs it. The Court of Small Causes at Ahmedabad had, therefore, power to issue distress warrant and that power could be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of 1947.10. We are also unable to hold that so long as application for fixation of standard rent is pending, the Courts jurisdiction to issue a distress warrant remains suspended. Until standard rent is determined, or an interim order is made, rent at the contractual rate is payable and process for recovery by distress warrant may always be adopted. Section 11 of Bombay Act 57 of 1947 confers upon the Court power to fix standard rent and permitted increases is certain cases. The Court is also competent to determine interim standard rent, and direct payment pending final determination of standard rent.11. The appellants applied for fixation of standard rent and invited the Court to pass an order fixing interim standard rent and the Court of Small Causes proceeded to pass the order for payment of rent and municipal taxes. In the present case there was an express order of the Court requiring the appellants to deposit in Court Rs. 810 per month and also to deposit municipal taxes. The Court of Small Causes ordered that the amount deposited by the appellants towards municipal taxes shall not be paid over to the landlord. The amount was on that account not available to the respondent. The respondent was unable to pay the taxes and the Municipality threatened to attach the property. The amount of municipal taxes was due and it was payable by the appellants. Though deposited in Court, it could not be withdrawn by the respondent.The municipal taxes were, therefore, in arrears and a distress warrant could be applied for under Section 53 of the Presidency Small Cause Courts Act by the respondent.12. It was urged that the appellants had to pay the amount of interim standard rent twice over; once when they deposited it in the Court and again when they satisfied the demand to avoid execution of the distress warrant. The landlord undoubtedly cannot obtain the amount twice over. But that does not mean that when the tenant has not made the amount available to the landlord the application for distress was not maintainable.13. The argument that the erroneous order passed by the Court of Small Causes preventing the landlord from recovering the amount of municipal taxes could have been got corrected by approaching the superior courts and so long as that order stood, no distress could be levied, ignores the fact that the appellants had persuaded the Court of Small Causes to pass that order. | 0[ds]4. By the express terms of the tenancy the appellants had undertaken to pay the municipal taxes and electricity charges as part of the rent; it is not open to them to contend that they are not rent, recoverable by the issue of a distress warrant. The last branch of the argument has, therefore, no force.The argument that Section 28 sets up a new set of Courts with special Powers and jurisdiction is without substance. Section 28 merely confers upon the existing Courts exclusive jurisdiction the respect of matters relating in possession of premises and recovery of rent and to determine claims and questions arising under that Act. On that account it does not become a Special Court; it is a Court which is competent to exercise all the powers which are conferred upon it by virtue of its constitution under the statute which governs it. The Court of Small Causes at Ahmedabad had, therefore, power to issue distress warrant and that power could be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of28 as originally enacted and later amended by Bombay Acts 58 of 1949 and 15 of 1952, in s far as it is material readsNotwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction.(a) in Greater Bombay, the Court of Small Causes, Bombay,(aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and(b) * * * * * *shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub-section (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.* * * * * *28 did not set up new Courts to try suits or proceedings between landlords and tenants; it invested existing courts with exclusive jurisdiction to try suits and proceedings of the nature set out and claims or questions arising under the Act. Section 31 of the Act provides, inter alia, that the courts specified in Section 28 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them. Section 49 authorises the State Government to make rules for the purpose of giving effect to the provisions of the Act and in particular to make rules, among other subjects, for the procedure to be followed in trying or hearing suits, proceedings (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of orders. Pursuant to the authority conferred, rules were framed by Government of Bombay and Rule 5 which dealt with the procedure to be followed by the Court of Small Causes, Bombay, for suits, proceedings, appeals etc, provided insofar as it issuch of the following suits and proceedings as are cognizable by the Court of Small Causes, Bombay, on the date of the coming into force of these Rules, namely :-(1) * * * * * * *(2) proceedings under Chapters VII and VIII of the Presidency Small Cause Courts Act, 1882, and(3) proceedings for execution of any decree or order passed in any such suit or proceedings, the Court of Small Causes, Bombay shall follow the practice and procedure provided for the time being (a) in the said Act except Chapter VI thereof, and (b) in the rules made under Section 9 of the said Act.We are also unable to hold that so long as application for fixation of standard rent is pending, the Courts jurisdiction to issue a distress warrant remains suspended. Until standard rent is determined, or an interim order is made, rent at the contractual rate is payable and process for recovery by distress warrant may always be adopted. Section 11 of Bombay Act 57 of 1947 confers upon the Court power to fix standard rent and permitted increases is certain cases. The Court is also competent to determine interim standard rent, and direct payment pending final determination of standardthe present case there was an express order of the Court requiring the appellants to deposit in Court Rs. 810 per month and also to deposit municipal taxes. The Court of Small Causes ordered that the amount deposited by the appellants towards municipal taxes shall not be paid over to the landlord. The amount was on that account not available to the respondent. The respondent was unable to pay the taxes and the Municipality threatened to attach the property. The amount of municipal taxes was due and it was payable by the appellants. Though deposited in Court, it could not be withdrawn by the respondent.The municipal taxes were, therefore, in arrears and a distress warrant could be applied for under Section 53 of the Presidency Small Cause Courts Act by thelandlord undoubtedly cannot obtain the amount twice over. But that does not mean that when the tenant has not made the amount available to the landlord the application for distress was not maintainable.13. The argument that the erroneous order passed by the Court of Small Causes preventing the landlord from recovering the amount of municipal taxes could have been got corrected by approaching the superior courts and so long as that order stood, no distress could be levied, ignores the fact that the appellants had persuaded the Court of Small Causes to pass thatd undoubtedly cannot obtain the amount twice over. But that does not mean that when the tenant has not made the amount available to the landlord the application for distress was not maintainable. | 0 | 2,428 | 1,124 | ### Instruction:
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shall extend to and come into force in the City of Ahmedabad on and from the appointed day.By Section 18 it was provided :"The Presidency Small Cause Courts Act, 1882 (XV of 1882), and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay LVII of 1947), shall in their application to the City of Ahmedabad stand amended in the manner and to the extent specified in the Schedule."By Section 19 it was provided :"With effect on and from the appointed day * * * the Provincial Small Cause Courts Act, 1887 (IX of 1887), and all rules, notifications and orders made thereunder shall cease to apply to, or be in force, in the City of Ahmedabad, * * *". By the Schedule certain amendments were made in the Presidency Small Cause Courts Act, 1882, in its application to the City of Ahmedabad. By Clause 13 of the Schedule, Section 50 of the Presidency Small Cause Courts Act was to apply to every place within the City of Ahmedabad. Certain amendments were also made in Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and in sub-section (1) of Section 28, before Clause (aa) the following clause was inserted."(a) in the City of Ahmedabad the Court of Small Causes of Ahmedabad,".7. By the enactment of the Ahmedabad City Courts Act, 1961, the proceedings before the Court of Small Causes at Ahmedabad were governed by that Act and by virtue of the amendment made in Section 28 of Bombay Act 57 of 1947 it became a Court of exclusive jurisdiction to try suits, proceedings, claims and questions arising under that Act. Being a Court governed by the Presidency Small Cause Courts Act, the Ahmedabad Court of Small Causes was competent to exercise, subject to the Ahmedabad City Courts Act all the powers which a Presidency Small Cause Court may exercise. Power to issue a distress warrant being expressly conferred by Section 53 of the Presidency Small Cause courts Act upon the Courts governed by it, the Court of Small Causes, Ahmedabad, was competent to exercise that power.8. Rule 5 was framed under the Bombay Act 57 of 1947 in exercise of the authority conferred by Section 49 (2) (iii). After the enactment of the Ahmedabad City Courts Act, 1961, Rule 5 as originally framed by the Government of Bombay continued in force by virtue of Section 87 of the Bombay Reorganization Act 11 of 1960, and applied to the Ahmedabad Small Cause Court. When Rule 5 was framed under Bombay Act 57 of 1947 it was not ultra vires, and it is not shown to have become ultra vires after the enactment of the Ahmedabad City Courts Act in its application to the City of Ahmedabad.9. The argument that Section 28 sets up a new set of Courts with special Powers and jurisdiction is without substance. Section 28 merely confers upon the existing Courts exclusive jurisdiction the respect of matters relating in possession of premises and recovery of rent and to determine claims and questions arising under that Act. On that account it does not become a Special Court; it is a Court which is competent to exercise all the powers which are conferred upon it by virtue of its constitution under the statute which governs it. The Court of Small Causes at Ahmedabad had, therefore, power to issue distress warrant and that power could be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of 1947.10. We are also unable to hold that so long as application for fixation of standard rent is pending, the Courts jurisdiction to issue a distress warrant remains suspended. Until standard rent is determined, or an interim order is made, rent at the contractual rate is payable and process for recovery by distress warrant may always be adopted. Section 11 of Bombay Act 57 of 1947 confers upon the Court power to fix standard rent and permitted increases is certain cases. The Court is also competent to determine interim standard rent, and direct payment pending final determination of standard rent.11. The appellants applied for fixation of standard rent and invited the Court to pass an order fixing interim standard rent and the Court of Small Causes proceeded to pass the order for payment of rent and municipal taxes. In the present case there was an express order of the Court requiring the appellants to deposit in Court Rs. 810 per month and also to deposit municipal taxes. The Court of Small Causes ordered that the amount deposited by the appellants towards municipal taxes shall not be paid over to the landlord. The amount was on that account not available to the respondent. The respondent was unable to pay the taxes and the Municipality threatened to attach the property. The amount of municipal taxes was due and it was payable by the appellants. Though deposited in Court, it could not be withdrawn by the respondent.The municipal taxes were, therefore, in arrears and a distress warrant could be applied for under Section 53 of the Presidency Small Cause Courts Act by the respondent.12. It was urged that the appellants had to pay the amount of interim standard rent twice over; once when they deposited it in the Court and again when they satisfied the demand to avoid execution of the distress warrant. The landlord undoubtedly cannot obtain the amount twice over. But that does not mean that when the tenant has not made the amount available to the landlord the application for distress was not maintainable.13. The argument that the erroneous order passed by the Court of Small Causes preventing the landlord from recovering the amount of municipal taxes could have been got corrected by approaching the superior courts and so long as that order stood, no distress could be levied, ignores the fact that the appellants had persuaded the Court of Small Causes to pass that order.
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pay the municipal taxes and electricity charges as part of the rent; it is not open to them to contend that they are not rent, recoverable by the issue of a distress warrant. The last branch of the argument has, therefore, no force.The argument that Section 28 sets up a new set of Courts with special Powers and jurisdiction is without substance. Section 28 merely confers upon the existing Courts exclusive jurisdiction the respect of matters relating in possession of premises and recovery of rent and to determine claims and questions arising under that Act. On that account it does not become a Special Court; it is a Court which is competent to exercise all the powers which are conferred upon it by virtue of its constitution under the statute which governs it. The Court of Small Causes at Ahmedabad had, therefore, power to issue distress warrant and that power could be exercised even in respect of suits and proceedings which were exclusively triable by it by virtue of the Bombay Act 57 of28 as originally enacted and later amended by Bombay Acts 58 of 1949 and 15 of 1952, in s far as it is material readsNotwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction.(a) in Greater Bombay, the Court of Small Causes, Bombay,(aa) in any area for which, a Court of Small Causes is established under the Provincial Small Cause Courts Act, 1887, such Court and(b) * * * * * *shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of sub-section (2), no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question.* * * * * *28 did not set up new Courts to try suits or proceedings between landlords and tenants; it invested existing courts with exclusive jurisdiction to try suits and proceedings of the nature set out and claims or questions arising under the Act. Section 31 of the Act provides, inter alia, that the courts specified in Section 28 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them. Section 49 authorises the State Government to make rules for the purpose of giving effect to the provisions of the Act and in particular to make rules, among other subjects, for the procedure to be followed in trying or hearing suits, proceedings (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of orders. Pursuant to the authority conferred, rules were framed by Government of Bombay and Rule 5 which dealt with the procedure to be followed by the Court of Small Causes, Bombay, for suits, proceedings, appeals etc, provided insofar as it issuch of the following suits and proceedings as are cognizable by the Court of Small Causes, Bombay, on the date of the coming into force of these Rules, namely :-(1) * * * * * * *(2) proceedings under Chapters VII and VIII of the Presidency Small Cause Courts Act, 1882, and(3) proceedings for execution of any decree or order passed in any such suit or proceedings, the Court of Small Causes, Bombay shall follow the practice and procedure provided for the time being (a) in the said Act except Chapter VI thereof, and (b) in the rules made under Section 9 of the said Act.We are also unable to hold that so long as application for fixation of standard rent is pending, the Courts jurisdiction to issue a distress warrant remains suspended. Until standard rent is determined, or an interim order is made, rent at the contractual rate is payable and process for recovery by distress warrant may always be adopted. Section 11 of Bombay Act 57 of 1947 confers upon the Court power to fix standard rent and permitted increases is certain cases. The Court is also competent to determine interim standard rent, and direct payment pending final determination of standardthe present case there was an express order of the Court requiring the appellants to deposit in Court Rs. 810 per month and also to deposit municipal taxes. The Court of Small Causes ordered that the amount deposited by the appellants towards municipal taxes shall not be paid over to the landlord. The amount was on that account not available to the respondent. The respondent was unable to pay the taxes and the Municipality threatened to attach the property. The amount of municipal taxes was due and it was payable by the appellants. Though deposited in Court, it could not be withdrawn by the respondent.The municipal taxes were, therefore, in arrears and a distress warrant could be applied for under Section 53 of the Presidency Small Cause Courts Act by thelandlord undoubtedly cannot obtain the amount twice over. But that does not mean that when the tenant has not made the amount available to the landlord the application for distress was not maintainable.13. The argument that the erroneous order passed by the Court of Small Causes preventing the landlord from recovering the amount of municipal taxes could have been got corrected by approaching the superior courts and so long as that order stood, no distress could be levied, ignores the fact that the appellants had persuaded the Court of Small Causes to pass thatd undoubtedly cannot obtain the amount twice over. But that does not mean that when the tenant has not made the amount available to the landlord the application for distress was not maintainable.
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B.G. Exploration & Production India Limited & Others Vs. Santosh Rangnekar | in paragraph 11 and 24 of the impugned order. He submitted that perusal of the said paragraphs indicate that the Plaintiff had averred that the present case was a case of victimisation and discriminatory treatment towards him. He submitted that the learned Single Judge has observed that in view of averments made in paragraph 11 of the original plaint, the Plaintiff had pleaded cause of action qua Defendant Nos. 2 and 3. He further submitted that the learned Single Judge has further erred in holding in paragraph 24 that Plaintiff had pleaded cause of action against Defendant Nos. 2 and 3. Mr. Chagla, learned senior counsel appearing on behalf of the Defendants submitted that by introducing averments of allegations in support of bald and vague words i.e. victimisation and discriminatory treatment used in the original plaint, Plaintiff had tried to introduce the fresh cause of action qua Defendant Nos. 2 and 3. He submitted that Plaintiff could not have brought a fresh suit on the basis of new cause of action, sought to be introduced against Defendant Nos. 2 and 3, since it was barred by limitation. It was submitted that cause of action for instituting the suit arose on 28th June, 2010 and the application for amendment was made on 19th July, 2013 i.e. more than three years after the cause of action has arisen.4. It was then submitted that no reasons were assigned by the learned Single Judge while dismissing the chamber summonses filed by Defendant Nos. 2 and 3. He also relied on the judgment of the Apex Court in the case of Shah Babulal Khimji, Appellant Vs. Jayaben D. Kania & Anr., Respondents [AIR 1981 Supreme Court 1786] and more particularly, paragraph 116 of the said judgment and submitted that if vested right of limitation accrued in favour of Defendants is taken away by the impugned interlocutory order, Letters Patent Appeal was maintainable.5. On the other hand, learned counsel appearing on behalf of the Plaintiff Mr. Shaikh submitted that by amending the plaint, Plaintiff wanted to bring on record the further particulars for the proving victimisation. He invited our attention to the averments in the plaint and submitted that the Plaintiff had specifically pleaded victimisation by the Defendants and for the purpose of giving better particulars, the Plaintiff had sought amendment in the plaint.6. It is an admitted position that the Plaintiff had not amended the prayer clause, but has merely given better particulars of the victimisation by the Defendants. The Apex Court in the case of - M/s. Bharat Iron Works, Appellants vs. Bhagubhai Balubhai Patel & Ors., Respondents [AIR 1976 Supreme Court 98] in paragraph 9 of the judgment has held that wherever victimisation is alleged, it has to be properly and adequately pleaded with all particulars, upon which the charge is based to enable the employer to fully meet them. Perusal of the amendment indicates that further particulars of victimization have been given by the Plaintiff. In paragraphs 9 and 10 of the said judgment, it is observed as under:9. A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof is, per se, no crucial instance Collective bargaining being the order of the day in a democratic social welfare State, legitimate trade union activity which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activity can flow in healthy channel only on mutual co-operation between employer and employee and cannot be considered as irksome by the management in the best interest of the concern. Dialogues with representatives of a union help striking a delicate balance in adjustment and settlement of various contentious claims and issues.10. The onus of establishing a plea of victimization will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced.7. In our view, therefore, the learned Single Judge is right in coming to the conclusion that this is not a fit case where fresh cause of action has been averred or pleaded but only further particulars have been given by the Plaintiff, and the submission that Plaintiffs claim is barred by limitation is without any substance. In our view, therefore, no case is made out for interference with the impugned order passed by the learned Single Judge.8. It is no doubt true that the learned Single Judge after having held that the Plaintiff was entitled to amend the plaint, did not give any reasons for dismissal of the chamber summons filed by Defendant No. 2 and Defendant No. 3. In our view, since the chamber summons for amendment of the plaint has been allowed and further particulars have been allowed to be averred / pleaded in the plaint, the necessary averments leading to victimisation by Defendant Nos. 2 and 3 have come on record, and as such, therefore, case of Defendant Nos. 2 and 3 that no cause of action has arisen against them falls to the ground. Chamber summonses filed by Defendant No. 2 and Defendant No. 3, therefore, were rightly dismissed by the learned Single Judge. | 0[ds]7. In our view, therefore, the learned Single Judge is right in coming to the conclusion that this is not a fit case where fresh cause of action has been averred or pleaded but only further particulars have been given by the Plaintiff, and the submission that Plaintiffs claim is barred by limitation is without any substance. In our view, therefore, no case is made out for interference with the impugned order passed by the learned Single Judge.8. It is no doubt true that the learned Single Judge after having held that the Plaintiff was entitled to amend the plaint, did not give any reasons for dismissal of the chamber summons filed by Defendant No. 2 and Defendant No. 3. In our view, since the chamber summons for amendment of the plaint has been allowed and further particulars have been allowed to be averred / pleaded in the plaint, the necessary averments leading to victimisation by Defendant Nos. 2 and 3 have come on record, and as such, therefore, case of Defendant Nos. 2 and 3 that no cause of action has arisen against them falls to the ground. Chamber summonses filed by Defendant No. 2 and Defendant No. 3, therefore, were rightly dismissed by the learned Single Judge. | 0 | 1,807 | 238 | ### Instruction:
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in paragraph 11 and 24 of the impugned order. He submitted that perusal of the said paragraphs indicate that the Plaintiff had averred that the present case was a case of victimisation and discriminatory treatment towards him. He submitted that the learned Single Judge has observed that in view of averments made in paragraph 11 of the original plaint, the Plaintiff had pleaded cause of action qua Defendant Nos. 2 and 3. He further submitted that the learned Single Judge has further erred in holding in paragraph 24 that Plaintiff had pleaded cause of action against Defendant Nos. 2 and 3. Mr. Chagla, learned senior counsel appearing on behalf of the Defendants submitted that by introducing averments of allegations in support of bald and vague words i.e. victimisation and discriminatory treatment used in the original plaint, Plaintiff had tried to introduce the fresh cause of action qua Defendant Nos. 2 and 3. He submitted that Plaintiff could not have brought a fresh suit on the basis of new cause of action, sought to be introduced against Defendant Nos. 2 and 3, since it was barred by limitation. It was submitted that cause of action for instituting the suit arose on 28th June, 2010 and the application for amendment was made on 19th July, 2013 i.e. more than three years after the cause of action has arisen.4. It was then submitted that no reasons were assigned by the learned Single Judge while dismissing the chamber summonses filed by Defendant Nos. 2 and 3. He also relied on the judgment of the Apex Court in the case of Shah Babulal Khimji, Appellant Vs. Jayaben D. Kania & Anr., Respondents [AIR 1981 Supreme Court 1786] and more particularly, paragraph 116 of the said judgment and submitted that if vested right of limitation accrued in favour of Defendants is taken away by the impugned interlocutory order, Letters Patent Appeal was maintainable.5. On the other hand, learned counsel appearing on behalf of the Plaintiff Mr. Shaikh submitted that by amending the plaint, Plaintiff wanted to bring on record the further particulars for the proving victimisation. He invited our attention to the averments in the plaint and submitted that the Plaintiff had specifically pleaded victimisation by the Defendants and for the purpose of giving better particulars, the Plaintiff had sought amendment in the plaint.6. It is an admitted position that the Plaintiff had not amended the prayer clause, but has merely given better particulars of the victimisation by the Defendants. The Apex Court in the case of - M/s. Bharat Iron Works, Appellants vs. Bhagubhai Balubhai Patel & Ors., Respondents [AIR 1976 Supreme Court 98] in paragraph 9 of the judgment has held that wherever victimisation is alleged, it has to be properly and adequately pleaded with all particulars, upon which the charge is based to enable the employer to fully meet them. Perusal of the amendment indicates that further particulars of victimization have been given by the Plaintiff. In paragraphs 9 and 10 of the said judgment, it is observed as under:9. A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof is, per se, no crucial instance Collective bargaining being the order of the day in a democratic social welfare State, legitimate trade union activity which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activity can flow in healthy channel only on mutual co-operation between employer and employee and cannot be considered as irksome by the management in the best interest of the concern. Dialogues with representatives of a union help striking a delicate balance in adjustment and settlement of various contentious claims and issues.10. The onus of establishing a plea of victimization will be upon the person pleading it. Since a charge of victimisation is a serious matter reflecting, to a degree, upon the subjective attitude of the employer evidenced by acts and conduct, these have to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough. All particulars of the charge brought out, if believed, must be weighed by the Tribunal and a conclusion should be reached on a totality of the evidence produced.7. In our view, therefore, the learned Single Judge is right in coming to the conclusion that this is not a fit case where fresh cause of action has been averred or pleaded but only further particulars have been given by the Plaintiff, and the submission that Plaintiffs claim is barred by limitation is without any substance. In our view, therefore, no case is made out for interference with the impugned order passed by the learned Single Judge.8. It is no doubt true that the learned Single Judge after having held that the Plaintiff was entitled to amend the plaint, did not give any reasons for dismissal of the chamber summons filed by Defendant No. 2 and Defendant No. 3. In our view, since the chamber summons for amendment of the plaint has been allowed and further particulars have been allowed to be averred / pleaded in the plaint, the necessary averments leading to victimisation by Defendant Nos. 2 and 3 have come on record, and as such, therefore, case of Defendant Nos. 2 and 3 that no cause of action has arisen against them falls to the ground. Chamber summonses filed by Defendant No. 2 and Defendant No. 3, therefore, were rightly dismissed by the learned Single Judge.
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7. In our view, therefore, the learned Single Judge is right in coming to the conclusion that this is not a fit case where fresh cause of action has been averred or pleaded but only further particulars have been given by the Plaintiff, and the submission that Plaintiffs claim is barred by limitation is without any substance. In our view, therefore, no case is made out for interference with the impugned order passed by the learned Single Judge.8. It is no doubt true that the learned Single Judge after having held that the Plaintiff was entitled to amend the plaint, did not give any reasons for dismissal of the chamber summons filed by Defendant No. 2 and Defendant No. 3. In our view, since the chamber summons for amendment of the plaint has been allowed and further particulars have been allowed to be averred / pleaded in the plaint, the necessary averments leading to victimisation by Defendant Nos. 2 and 3 have come on record, and as such, therefore, case of Defendant Nos. 2 and 3 that no cause of action has arisen against them falls to the ground. Chamber summonses filed by Defendant No. 2 and Defendant No. 3, therefore, were rightly dismissed by the learned Single Judge.
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MEDICAL COUNCIL OF INDIA Vs. JAIPUR NATIONAL UNIVERSITY INSTITUTE FOR MEDICAL SCIENCES AND RESEARCH CENTRE | this Court in its order dated 09.10.2017 and all those Institutions including the Respondent Institute were added as respondents. This Court further directed MCI to conduct surprise inspection in respect of all the Colleges. It appears that the Assessors appointed by MCI conducted physical assessment and verification on 31st October, 2017 and 1st November, 2017. The assessment report was placed before the Executive Committee of MCI in its Meeting held on 22.11.2017 where the Executive Committee observed various deficiencies of Infrastructure, Clinical Material and other physical facilities. The Executive Committee therefore decided to recommend to the Central Government not to grant renewal of permission for the 3rd Batch of students for the academic year 2018-2019. Thereafter, the Central Government afforded opportunity of hearing to the Respondent Institute and requested MCI to review the case of Respondent Institute. Aforesaid Writ Petition No.432 of 2017 was disposed of by this Court on 17.01.2018 directing MCI to take appropriate decision in respect of 25 Medical Colleges for the academic year 2018-2019 by 31.03.2018.5. In order to verify the claims made by the Respondent Institute regarding compliance and that the deficiencies had been removed, MCI conducted compliance verification on 05.03.2018 and the report in respect thereof was placed in the Meeting of the Executive Committee of MCI held on 24.03.2018. After discussion and deliberation, the Executive Committee found that the deficiencies in respect of Infrastructure, Clinical Material and other physical facilities still persisted and therefore recommended to the Central Government not to grant renewal of permission to the Respondent Institute for academic session 2018-2019. The Central Government after due consideration of the recommendations made by MCI, vide its letter dated 01.05.2018 decided not to grant renewal of permission for admission for the academic year 2018-2019.6. The aforesaid decision of the Central Government was challenged by the Respondent Institute by preferring D.B. Civil Writ Petition No.10103 of 2018 in the High Court of Rajasthan, Bench at Jaipur. It appears that since the Advocates in Jaipur had gone on strike, the Chairperson of the Respondent Institute, Under Secretary, Ministry of Health and Family Welfare, Union of India and Law Officer of MCI who were present, were heard by the High Court on 29.05.2018. The High Court found that the inspection conducted by MCI was with predetermined mind not to renew the permission to the Respondent Institute and was of the prima facie view that the findings arrived at by MCI were required to be stayed at the interim stage. The High Court thus while admitting the petition fixed the matter for final hearing on 09.07.2018 but proceeded to pass following order:-?6.2 The matter is fixed for final hearing on 09.07.2018.6.3 In the meantime and till disposal of the petition, the order dated 01.05.2018 as well as dated 28.03.2018 both are stayed and respondent No.1 is directed to allow the petitioner College to admit 150 students in the third batch for the academic year 2018-2019 subject to a rider that if ultimately the petitioner fails in this petition, he will refund all the fees to the students who are admitted pursuant to the order of this court.6.4 The stay application is accordingly disposed of.The Central Government will act upon this order?.7. This appeal questioning the aforesaid interim direction dated 29.05.2018 was listed along with a similar matter where by way of an interim direction the concerned College was allowed to go ahead with admissions to 1st MBBS course for the academic session 2018-2019. After having heard Mr. Maninder Singh, learned Additional Solicitor General of India in support of the appeal and Mr. Vivek Krishna Tankha, Senior Advocate for the respondent in the present matter in whose submission there were no deficiencies at all, this Court on 14.06.2018 had reserved the matters for judgment and passed following order:-?Heard learned counsel. In both these matters, the High Courts have permitted the concerned medical colleges to go ahead with admissions. The correctness of those orders passed at an interim stage is under challenge at the instance of the Medical College of India. We have been given to understand by the learned counsel appearing for both the medical colleges that till this date, no admissions have been effected despite the interim orders passed by the High Court in their favour. The statement is taken on record.We reserve the judgment and till the judgment is pronounced, no admission shall take place in respect of both the institutions to the course of 1st MBBS for the ensuing academic session 2018-2019.Permission is granted to place on record requisite documents by 16.06.2018.?8. In the companion matter namely Civil Appeal arising out of Special Leave Petition (Civil) No.14972 of 2018, we have adverted to certain decisions of this Court where the propriety and correctness of similar such interim directions had been questioned before this Court. Relying upon the decisions in (i) Medical Council of India v. Rajiv Gandhi University of Health Sciences and others (2004) 6 SCC 76 , (ii) Medical Council of India v. JSS Medical College (2012) 5 SCC 628 , (iii) Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) (2016) 11 SCC 530 , (iv) Dental Council of India v. Dr. Hedgewar Smruti Rugna Seva Mandal Hingoli and Others (2017) 13 SCC 115 , we have held in the companion matter that there was no justification for passing interim directions and permitting the concerned College to go ahead with provisional admissions for the academic session 2018-2019. We have further held that any stipulation that the admissions pursuant to such interim directions shall be subject to the result of the petition would not be a sufficient protection or insulation and such orders result in tremendous prejudice to the students. We have further held that if a case is made out the proper course is to hear the matter finally rather than passing interim directions as have been passed in the present matter. Based on same reasoning, we hold that the High Court was not justified in passing the order under challenge. | 1[ds]8. In the companion matter namely Civil Appeal arising out of Special Leave Petition (Civil) No.14972 of 2018, we have adverted to certain decisions of this Court where the propriety and correctness of similar such interim directions had been questioned before this Court. Relying upon the decisions in (i) Medical Council of India v. Rajiv Gandhi University of Health Sciences and, (ii) Medical Council of India v. JSS Medical, (iii) Medical Council of India v. Kalinga Institute of Medical Sciences, (iv) Dental Council of India v. Dr. Hedgewar Smruti Rugna Seva Mandal Hingoli and, we have held in the companion matter that there was no justification for passing interim directions and permitting the concerned College to go ahead with provisional admissions for the academic sessionWe have further held that any stipulation that the admissions pursuant to such interim directions shall be subject to the result of the petition would not be a sufficient protection or insulation and such orders result in tremendous prejudice to the students.We have further held that if a case is made out the proper course is to hear the matter finally rather than passing interim directions as have been passed in the present matter. Based on same reasoning, we hold that the High Court was not justified in passing the order under challenge. | 1 | 1,301 | 241 | ### 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:
this Court in its order dated 09.10.2017 and all those Institutions including the Respondent Institute were added as respondents. This Court further directed MCI to conduct surprise inspection in respect of all the Colleges. It appears that the Assessors appointed by MCI conducted physical assessment and verification on 31st October, 2017 and 1st November, 2017. The assessment report was placed before the Executive Committee of MCI in its Meeting held on 22.11.2017 where the Executive Committee observed various deficiencies of Infrastructure, Clinical Material and other physical facilities. The Executive Committee therefore decided to recommend to the Central Government not to grant renewal of permission for the 3rd Batch of students for the academic year 2018-2019. Thereafter, the Central Government afforded opportunity of hearing to the Respondent Institute and requested MCI to review the case of Respondent Institute. Aforesaid Writ Petition No.432 of 2017 was disposed of by this Court on 17.01.2018 directing MCI to take appropriate decision in respect of 25 Medical Colleges for the academic year 2018-2019 by 31.03.2018.5. In order to verify the claims made by the Respondent Institute regarding compliance and that the deficiencies had been removed, MCI conducted compliance verification on 05.03.2018 and the report in respect thereof was placed in the Meeting of the Executive Committee of MCI held on 24.03.2018. After discussion and deliberation, the Executive Committee found that the deficiencies in respect of Infrastructure, Clinical Material and other physical facilities still persisted and therefore recommended to the Central Government not to grant renewal of permission to the Respondent Institute for academic session 2018-2019. The Central Government after due consideration of the recommendations made by MCI, vide its letter dated 01.05.2018 decided not to grant renewal of permission for admission for the academic year 2018-2019.6. The aforesaid decision of the Central Government was challenged by the Respondent Institute by preferring D.B. Civil Writ Petition No.10103 of 2018 in the High Court of Rajasthan, Bench at Jaipur. It appears that since the Advocates in Jaipur had gone on strike, the Chairperson of the Respondent Institute, Under Secretary, Ministry of Health and Family Welfare, Union of India and Law Officer of MCI who were present, were heard by the High Court on 29.05.2018. The High Court found that the inspection conducted by MCI was with predetermined mind not to renew the permission to the Respondent Institute and was of the prima facie view that the findings arrived at by MCI were required to be stayed at the interim stage. The High Court thus while admitting the petition fixed the matter for final hearing on 09.07.2018 but proceeded to pass following order:-?6.2 The matter is fixed for final hearing on 09.07.2018.6.3 In the meantime and till disposal of the petition, the order dated 01.05.2018 as well as dated 28.03.2018 both are stayed and respondent No.1 is directed to allow the petitioner College to admit 150 students in the third batch for the academic year 2018-2019 subject to a rider that if ultimately the petitioner fails in this petition, he will refund all the fees to the students who are admitted pursuant to the order of this court.6.4 The stay application is accordingly disposed of.The Central Government will act upon this order?.7. This appeal questioning the aforesaid interim direction dated 29.05.2018 was listed along with a similar matter where by way of an interim direction the concerned College was allowed to go ahead with admissions to 1st MBBS course for the academic session 2018-2019. After having heard Mr. Maninder Singh, learned Additional Solicitor General of India in support of the appeal and Mr. Vivek Krishna Tankha, Senior Advocate for the respondent in the present matter in whose submission there were no deficiencies at all, this Court on 14.06.2018 had reserved the matters for judgment and passed following order:-?Heard learned counsel. In both these matters, the High Courts have permitted the concerned medical colleges to go ahead with admissions. The correctness of those orders passed at an interim stage is under challenge at the instance of the Medical College of India. We have been given to understand by the learned counsel appearing for both the medical colleges that till this date, no admissions have been effected despite the interim orders passed by the High Court in their favour. The statement is taken on record.We reserve the judgment and till the judgment is pronounced, no admission shall take place in respect of both the institutions to the course of 1st MBBS for the ensuing academic session 2018-2019.Permission is granted to place on record requisite documents by 16.06.2018.?8. In the companion matter namely Civil Appeal arising out of Special Leave Petition (Civil) No.14972 of 2018, we have adverted to certain decisions of this Court where the propriety and correctness of similar such interim directions had been questioned before this Court. Relying upon the decisions in (i) Medical Council of India v. Rajiv Gandhi University of Health Sciences and others (2004) 6 SCC 76 , (ii) Medical Council of India v. JSS Medical College (2012) 5 SCC 628 , (iii) Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) (2016) 11 SCC 530 , (iv) Dental Council of India v. Dr. Hedgewar Smruti Rugna Seva Mandal Hingoli and Others (2017) 13 SCC 115 , we have held in the companion matter that there was no justification for passing interim directions and permitting the concerned College to go ahead with provisional admissions for the academic session 2018-2019. We have further held that any stipulation that the admissions pursuant to such interim directions shall be subject to the result of the petition would not be a sufficient protection or insulation and such orders result in tremendous prejudice to the students. We have further held that if a case is made out the proper course is to hear the matter finally rather than passing interim directions as have been passed in the present matter. Based on same reasoning, we hold that the High Court was not justified in passing the order under challenge.
### Response:
1
### Explanation:
8. In the companion matter namely Civil Appeal arising out of Special Leave Petition (Civil) No.14972 of 2018, we have adverted to certain decisions of this Court where the propriety and correctness of similar such interim directions had been questioned before this Court. Relying upon the decisions in (i) Medical Council of India v. Rajiv Gandhi University of Health Sciences and, (ii) Medical Council of India v. JSS Medical, (iii) Medical Council of India v. Kalinga Institute of Medical Sciences, (iv) Dental Council of India v. Dr. Hedgewar Smruti Rugna Seva Mandal Hingoli and, we have held in the companion matter that there was no justification for passing interim directions and permitting the concerned College to go ahead with provisional admissions for the academic sessionWe have further held that any stipulation that the admissions pursuant to such interim directions shall be subject to the result of the petition would not be a sufficient protection or insulation and such orders result in tremendous prejudice to the students.We have further held that if a case is made out the proper course is to hear the matter finally rather than passing interim directions as have been passed in the present matter. Based on same reasoning, we hold that the High Court was not justified in passing the order under challenge.
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Dilip Premnarayan Tiwari Vs. State Of Maharashtra | Shashidharan and this ought to have added as a spark which resulted in tornado. Dilip undoubtedly was a young person not even having crossed his 25 years of life and not having any criminal antecedent. If he became the victim of his wrong but genuine caste considerations, it would not justify the death sentence. The murders were the outcome of social issue like a marriage with a person of so-called lower caste. However, a time has come when we have to consider these social issues as relevant, while considering the death sentence in the circumstances as these. The caste is a concept which grips a person before his birth and does not leave him even after his death. The vicious grip of the caste, community, religion, though totally unjustified, is a stark reality. The psyche of the offender in the background of a social issue like an inter-caste-community marriage, though wholly unjustified would have to be considered in the peculiar circumstances of this case. 42. No doubt, the murder was brutal. However, it has been pointed out by Shri Gaurav Agrawal as also Shri Raj that this was not a diabolic murder nor had the murderers acted in depravity of their minds by disfiguring the bodies. The incident must have taken place barely within 10-15 minutes when they came, assaulted the family members and left. True it is that the two ladies who were assaulted were helpless and so were Krishnan and Prabhu. But when we weigh all the circumstances, particularly, about the mindset of Dilip, the cruel acts on the part of the accused would not justify the death sentence. The disturbed mental feeling or the constant feeling of injustice has been considered by this Court as a mitigating circumstance in Om Prakash v. State of Haryana [1999 (3) SCC 19 ] where the accused had committed the murder of seven persons. That is also an indicator to the fact that mere number of persons killed is not by itself a circumstance justifying the death sentence. In fact in one other case reported as Ram Pal v. State of U.P. [2003 (7) SCC 141 ] total 21 persons were killed as the accused trapped them in a house and burnt the house. Shri Karanjkar, appearing on behalf of the State very strongly contended as against this, that in the present case while four persons were killed, two helpless ladies were also assaulted and very seriously injured and it is only because the accused thought that those two ladies had died and left, that the lives of Deepa and Indira were spared. Therefore, in the circumstances of this case, we must lean in favour of the death sentence. In a death sentence matter, it is not only the nature of the crime but the background of the criminal, his psychology, his social conditions and his mindset for committing the offence are also relevant. No doubt in Ravji alias Ram Chandra v. State of Rajasthan [1996 (2) SCC 175 ], this Court held as under: "...The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the societys cry for justice against the criminal"...." 43. It is also true that this case was followed in as many as six cases where the death sentence was approved of. However, in his judgment reported as Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [JT 2009 (7) SC 248 ] Hon. Sinha, J. pointed out that this judgment is per incuriam as the law laid down therein is contrary to the law laid down in Bachan Singhs case (cited supra) where the principle has fallen out to the effect that the Court should not confine its consideration principally or merely to the circumstances connected with the particular crime but also give due consideration to the circumstances of the criminal. It is because of this that we have ventured to consider the mindset of accused No.1, Dilip and the vicious caste grip that might have catapulted the crime committed by him. We would, thus, follow Bachan Singhs case (cited supra) and the principles therein rather than following the narrow approach given in Ravjis case (cited supra). 44. Once we decide not to award the death sentence to accused No.1, Dilip, the accused No.3, Manoj also deserves not to be given death sentence. Even he is a person without any criminal antecedents and he appears to have joined the company of Dilip only out of his commitment as he was shown to be a resident of the same house. We, therefore, do not think that even he deserves death penalty. Accused No.2, Sunil has comparatively a lesser role. Admittedly, he has not assaulted Krishnan or Prabhu, to begin with. Who has assaulted Prabhu and Abhayraj is still not clear, as it could also be that in the assaults the leading role could have been taken by the unknown accused. In that view, he also does not deserve the death sentence. The question is then how are these accused persons to be dealt with. Ordinarily, they would be liable to be awarded the life imprisonment. 45. However, in the peculiar circumstances of this case, mere life imprisonment which is capable of resulting into 20 years of imprisonment or 14 years of actual imprisonment may not be adequate punishment for these accused persons. | 0[ds]We, therefore, do not think that even he deserves death penalty. Accused No.2, Sunil has comparatively a lesser role. Admittedly, he has not assaulted Krishnan or Prabhu, to begin with. Who has assaulted Prabhu and Abhayraj is still not clear, as it could also be that in the assaults the leading role could have been taken by the unknown accused. In that view, he also does not deserve the death sentence. The question is then how are these accused persons to be dealt with. Ordinarily, they would be liable to be awarded the life imprisonment45. However, in the peculiar circumstances of this case, mere life imprisonment which is capable of resulting into 20 years of imprisonment or 14 years of actual imprisonment may not be adequate punishment for these accused persons. | 0 | 11,613 | 153 | ### 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:
Shashidharan and this ought to have added as a spark which resulted in tornado. Dilip undoubtedly was a young person not even having crossed his 25 years of life and not having any criminal antecedent. If he became the victim of his wrong but genuine caste considerations, it would not justify the death sentence. The murders were the outcome of social issue like a marriage with a person of so-called lower caste. However, a time has come when we have to consider these social issues as relevant, while considering the death sentence in the circumstances as these. The caste is a concept which grips a person before his birth and does not leave him even after his death. The vicious grip of the caste, community, religion, though totally unjustified, is a stark reality. The psyche of the offender in the background of a social issue like an inter-caste-community marriage, though wholly unjustified would have to be considered in the peculiar circumstances of this case. 42. No doubt, the murder was brutal. However, it has been pointed out by Shri Gaurav Agrawal as also Shri Raj that this was not a diabolic murder nor had the murderers acted in depravity of their minds by disfiguring the bodies. The incident must have taken place barely within 10-15 minutes when they came, assaulted the family members and left. True it is that the two ladies who were assaulted were helpless and so were Krishnan and Prabhu. But when we weigh all the circumstances, particularly, about the mindset of Dilip, the cruel acts on the part of the accused would not justify the death sentence. The disturbed mental feeling or the constant feeling of injustice has been considered by this Court as a mitigating circumstance in Om Prakash v. State of Haryana [1999 (3) SCC 19 ] where the accused had committed the murder of seven persons. That is also an indicator to the fact that mere number of persons killed is not by itself a circumstance justifying the death sentence. In fact in one other case reported as Ram Pal v. State of U.P. [2003 (7) SCC 141 ] total 21 persons were killed as the accused trapped them in a house and burnt the house. Shri Karanjkar, appearing on behalf of the State very strongly contended as against this, that in the present case while four persons were killed, two helpless ladies were also assaulted and very seriously injured and it is only because the accused thought that those two ladies had died and left, that the lives of Deepa and Indira were spared. Therefore, in the circumstances of this case, we must lean in favour of the death sentence. In a death sentence matter, it is not only the nature of the crime but the background of the criminal, his psychology, his social conditions and his mindset for committing the offence are also relevant. No doubt in Ravji alias Ram Chandra v. State of Rajasthan [1996 (2) SCC 175 ], this Court held as under: "...The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the societys cry for justice against the criminal"...." 43. It is also true that this case was followed in as many as six cases where the death sentence was approved of. However, in his judgment reported as Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [JT 2009 (7) SC 248 ] Hon. Sinha, J. pointed out that this judgment is per incuriam as the law laid down therein is contrary to the law laid down in Bachan Singhs case (cited supra) where the principle has fallen out to the effect that the Court should not confine its consideration principally or merely to the circumstances connected with the particular crime but also give due consideration to the circumstances of the criminal. It is because of this that we have ventured to consider the mindset of accused No.1, Dilip and the vicious caste grip that might have catapulted the crime committed by him. We would, thus, follow Bachan Singhs case (cited supra) and the principles therein rather than following the narrow approach given in Ravjis case (cited supra). 44. Once we decide not to award the death sentence to accused No.1, Dilip, the accused No.3, Manoj also deserves not to be given death sentence. Even he is a person without any criminal antecedents and he appears to have joined the company of Dilip only out of his commitment as he was shown to be a resident of the same house. We, therefore, do not think that even he deserves death penalty. Accused No.2, Sunil has comparatively a lesser role. Admittedly, he has not assaulted Krishnan or Prabhu, to begin with. Who has assaulted Prabhu and Abhayraj is still not clear, as it could also be that in the assaults the leading role could have been taken by the unknown accused. In that view, he also does not deserve the death sentence. The question is then how are these accused persons to be dealt with. Ordinarily, they would be liable to be awarded the life imprisonment. 45. However, in the peculiar circumstances of this case, mere life imprisonment which is capable of resulting into 20 years of imprisonment or 14 years of actual imprisonment may not be adequate punishment for these accused persons.
### Response:
0
### Explanation:
We, therefore, do not think that even he deserves death penalty. Accused No.2, Sunil has comparatively a lesser role. Admittedly, he has not assaulted Krishnan or Prabhu, to begin with. Who has assaulted Prabhu and Abhayraj is still not clear, as it could also be that in the assaults the leading role could have been taken by the unknown accused. In that view, he also does not deserve the death sentence. The question is then how are these accused persons to be dealt with. Ordinarily, they would be liable to be awarded the life imprisonment45. However, in the peculiar circumstances of this case, mere life imprisonment which is capable of resulting into 20 years of imprisonment or 14 years of actual imprisonment may not be adequate punishment for these accused persons.
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LAXMIKANT & ORS Vs. STATE OF MAHARASHTRA & ORS | of Greater Mumbai & Ors. v. Hiraman Sitaram Deorukhar & Ors. (2019) 14 SCC 411 . 2. A final Development Plan was published under Section 31(6) of the Act on 2.1.2002 which came into force on 18.2.2002 in respect of land including the land owned by the appellants such as Latur Reservation Site bearing No. 217 for playground. The appellants purchased the land bearing Plot Nos. 1, 2, 9 & 10 admeasuring 1394.05 square meters out of Survey No. 73, admeasuring 6500 square meters on 21.11.2002. Though the Development Plan was finalized, but the same was never implemented nor any action was taken for acquisition of the land under the Land Acquisition Act, 1894. After expiry of ten years, the appellants issued notice on 16.8.2016 under Section 127 of the Act so as to purchase the reserved land within one year of the date of the notice. Such notice was acknowledged by the respondent Municipal Corporation on 20/22.8.2016 to submit measuring plan showing reservation thereon including the area owned by the appellants. 3. It was thereafter that the appellants filed a writ petition before the High Court for a writ of mandamus directing the respondents to treat the land of the appellants bearing Survey No. 73 as released from the Development Plan of Latur Municipal Corporation and that reservation of Site No. 217 for playground be declared to have lapsed to the extent of the land owned by the appellants and that the land is available for the residential use of the appellants. In the counter affidavit filed by the Municipal Corporation, it was inter alia submitted that the proposal was submitted to respondent No. 2 i.e., the Collector, Latur to take effective steps for acquiring the land bearing Survey No. 73 as the land was reserved for playground. The proposal was returned by the Competent Authority but no effective decision has been taken over the said proposal. 4. Thus, it was beyond dispute that the land once included in the Development Plan under Section 31(6) of the Act was not acquired within the period of ten years and within additional period of one year after purchase notice was submitted by the appellants on 16.8.2016 and, in fact, not till the writ petition was decided by the High Court. The Municipal Corporation is not aggrieved against the declaration granted by the High Court of the fact that the reservation of the land stands lapsed. It is only the land owner who has come in appeal before this Court against the restriction of one year put by the High Court giving additional time to respondents to acquire the land. 5. This Court in Municipal Corporation of Greater Mumbai was examining the reservation of land for a garden in a Development Plan in the year 1966 but the same was not acquired even after purchase notice was served by the land owner. However, relying upon the judgment of this Court reported as Bangalore Medical Trust v. B.S. Muddappa & Ors. (1991) 4 SCC 54 and some other judgments, it was held that the land reserved for public park cannot be permitted to be converted for other public purposes. 6. We have heard learned counsel for the parties and find that the liberty given by the High Court to acquire the land within an additional period of one year is not contemplated by the statute. This Court in Bangalore Medical Trust, a Public Interest Litigation, interfered with the decision of the Bangalore Development Authority to convert the land reserved for public parks for the purposes of construction of a hospital. It was in these circumstances that this Court intervened, indicting the land reserved for public parks to be used for other purposes. 7. This Court in Municipal Corporation of Greater Mumbai held that the authorities have been given a duty to act as a cestui que trust (beneficiary of the trust) with respect to public park and had thus directed to acquire land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within a period of six months. Such direction was given under Article 142 of the Constitution of India keeping in view the facts of the case. Such direction and period for acquisition of land is not a law declared by this Court which is to be treated as binding precedent for this Court and the subordinate courts subordinate in terms of Article 141 read with Article 144 of the Constitution. Therefore, once the Act does not contemplate any further period for acquisition, the Court cannot grant additional period for acquisition of land. The land was reserved for a public purpose way back in 2002. By such reservation, the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the respondents to acquire the land but still the land was not acquired. The land owner cannot be deprived of the use of the land for years together. Once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for indefinite period. The Statute has provided a period of ten years to acquire the land under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra Act No. 42 of 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State. 8. The State or its functionaries cannot be directed to acquire the land as the acquisition is on its satisfaction that the land is required for a public purpose. If the State was inactive for long number of years, the Courts would not issue direction for acquisition of land, which is exercise of power of the State to invoke its rights of eminent domain. | 1[ds]6. We have heard learned counsel for the parties and find that the liberty given by the High Court to acquire the land within an additional period of one year is not contemplated by the statute. This Court in Bangalore Medical Trust, a Public Interest Litigation, interfered with the decision of the Bangalore Development Authority to convert the land reserved for public parks for the purposes of construction of a hospital. It was in these circumstances that this Court intervened, indicting the land reserved for public parks to be used for other purposes.7. This Court in Municipal Corporation of Greater Mumbai held that the authorities have been given a duty to act as a cestui que trust (beneficiary of the trust) with respect to public park and had thus directed to acquire land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within a period of six months. Such direction was given under Article 142 of the Constitution of India keeping in view the facts of the case. Such direction and period for acquisition of land is not a law declared by this Court which is to be treated as binding precedent for this Court and the subordinate courts subordinate in terms of Article 141 read with Article 144 of the Constitution. Therefore, once the Act does not contemplate any further period for acquisition, the Court cannot grant additional period for acquisition of land. The land was reserved for a public purpose way back in 2002. By such reservation, the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the respondents to acquire the land but still the land was not acquired. The land owner cannot be deprived of the use of the land for years together. Once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for indefinite period. The Statute has provided a period of ten years to acquire the land under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra Act No. 42 of 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State.8. The State or its functionaries cannot be directed to acquire the land as the acquisition is on its satisfaction that the land is required for a public purpose. If the State was inactive for long number of years, the Courts would not issue direction for acquisition of land, which is exercise of power of the State to invoke its rights of eminent domain. | 1 | 1,190 | 513 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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of Greater Mumbai & Ors. v. Hiraman Sitaram Deorukhar & Ors. (2019) 14 SCC 411 . 2. A final Development Plan was published under Section 31(6) of the Act on 2.1.2002 which came into force on 18.2.2002 in respect of land including the land owned by the appellants such as Latur Reservation Site bearing No. 217 for playground. The appellants purchased the land bearing Plot Nos. 1, 2, 9 & 10 admeasuring 1394.05 square meters out of Survey No. 73, admeasuring 6500 square meters on 21.11.2002. Though the Development Plan was finalized, but the same was never implemented nor any action was taken for acquisition of the land under the Land Acquisition Act, 1894. After expiry of ten years, the appellants issued notice on 16.8.2016 under Section 127 of the Act so as to purchase the reserved land within one year of the date of the notice. Such notice was acknowledged by the respondent Municipal Corporation on 20/22.8.2016 to submit measuring plan showing reservation thereon including the area owned by the appellants. 3. It was thereafter that the appellants filed a writ petition before the High Court for a writ of mandamus directing the respondents to treat the land of the appellants bearing Survey No. 73 as released from the Development Plan of Latur Municipal Corporation and that reservation of Site No. 217 for playground be declared to have lapsed to the extent of the land owned by the appellants and that the land is available for the residential use of the appellants. In the counter affidavit filed by the Municipal Corporation, it was inter alia submitted that the proposal was submitted to respondent No. 2 i.e., the Collector, Latur to take effective steps for acquiring the land bearing Survey No. 73 as the land was reserved for playground. The proposal was returned by the Competent Authority but no effective decision has been taken over the said proposal. 4. Thus, it was beyond dispute that the land once included in the Development Plan under Section 31(6) of the Act was not acquired within the period of ten years and within additional period of one year after purchase notice was submitted by the appellants on 16.8.2016 and, in fact, not till the writ petition was decided by the High Court. The Municipal Corporation is not aggrieved against the declaration granted by the High Court of the fact that the reservation of the land stands lapsed. It is only the land owner who has come in appeal before this Court against the restriction of one year put by the High Court giving additional time to respondents to acquire the land. 5. This Court in Municipal Corporation of Greater Mumbai was examining the reservation of land for a garden in a Development Plan in the year 1966 but the same was not acquired even after purchase notice was served by the land owner. However, relying upon the judgment of this Court reported as Bangalore Medical Trust v. B.S. Muddappa & Ors. (1991) 4 SCC 54 and some other judgments, it was held that the land reserved for public park cannot be permitted to be converted for other public purposes. 6. We have heard learned counsel for the parties and find that the liberty given by the High Court to acquire the land within an additional period of one year is not contemplated by the statute. This Court in Bangalore Medical Trust, a Public Interest Litigation, interfered with the decision of the Bangalore Development Authority to convert the land reserved for public parks for the purposes of construction of a hospital. It was in these circumstances that this Court intervened, indicting the land reserved for public parks to be used for other purposes. 7. This Court in Municipal Corporation of Greater Mumbai held that the authorities have been given a duty to act as a cestui que trust (beneficiary of the trust) with respect to public park and had thus directed to acquire land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within a period of six months. Such direction was given under Article 142 of the Constitution of India keeping in view the facts of the case. Such direction and period for acquisition of land is not a law declared by this Court which is to be treated as binding precedent for this Court and the subordinate courts subordinate in terms of Article 141 read with Article 144 of the Constitution. Therefore, once the Act does not contemplate any further period for acquisition, the Court cannot grant additional period for acquisition of land. The land was reserved for a public purpose way back in 2002. By such reservation, the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the respondents to acquire the land but still the land was not acquired. The land owner cannot be deprived of the use of the land for years together. Once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for indefinite period. The Statute has provided a period of ten years to acquire the land under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra Act No. 42 of 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State. 8. The State or its functionaries cannot be directed to acquire the land as the acquisition is on its satisfaction that the land is required for a public purpose. If the State was inactive for long number of years, the Courts would not issue direction for acquisition of land, which is exercise of power of the State to invoke its rights of eminent domain.
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6. We have heard learned counsel for the parties and find that the liberty given by the High Court to acquire the land within an additional period of one year is not contemplated by the statute. This Court in Bangalore Medical Trust, a Public Interest Litigation, interfered with the decision of the Bangalore Development Authority to convert the land reserved for public parks for the purposes of construction of a hospital. It was in these circumstances that this Court intervened, indicting the land reserved for public parks to be used for other purposes.7. This Court in Municipal Corporation of Greater Mumbai held that the authorities have been given a duty to act as a cestui que trust (beneficiary of the trust) with respect to public park and had thus directed to acquire land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within a period of six months. Such direction was given under Article 142 of the Constitution of India keeping in view the facts of the case. Such direction and period for acquisition of land is not a law declared by this Court which is to be treated as binding precedent for this Court and the subordinate courts subordinate in terms of Article 141 read with Article 144 of the Constitution. Therefore, once the Act does not contemplate any further period for acquisition, the Court cannot grant additional period for acquisition of land. The land was reserved for a public purpose way back in 2002. By such reservation, the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the respondents to acquire the land but still the land was not acquired. The land owner cannot be deprived of the use of the land for years together. Once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for indefinite period. The Statute has provided a period of ten years to acquire the land under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra Act No. 42 of 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State.8. The State or its functionaries cannot be directed to acquire the land as the acquisition is on its satisfaction that the land is required for a public purpose. If the State was inactive for long number of years, the Courts would not issue direction for acquisition of land, which is exercise of power of the State to invoke its rights of eminent domain.
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Solana Ramachandra Rao & Ors Vs. Maddi Kutumba Rao & Anr | 123 for interest. No deposit was made for payment to the decree-holder and it was stated in Para. 6 of the petition that:"The 3rd respondent represented by his mother is impleaded as third respondent in the Scheme Suit O. S. No. 60 of 1957, Sub-Court, Vijayawada, wherein necessary provision for the discharge of the decree debt due to him from the choultry is prayed for and has to be made. At the request of the petitioner to keep up the fair name and prestige of the founders of the choultry, the 3rd respondents mother as guardian and executor agreed to the said course and is willing for an adequate provision for the discharge of the decree debt being made in the said suit and has agreed to postpone realising the decree debt in O. S. No. 116 of 1949. Sub-Court, Vijayawada, till then in case the exiting trustees, respondents 1 and 2 do not choose to discharge the same in the meanwhile. Under the circumstances, the petitioner submits that the Honble Court may be pleased to dispense with the deposit or the amount specified in the proclamation of sale for payment to the decree-holder as required by Cl. (b) of R. 89 of C). XXI. C. P. C." The prayer in the petition was that the sale of the properties in favour of the fourth respondent be set aside and that respondents l and 2 do pay the expenses to be incurred by the petitioner The Subordinate Judge allowed the application observing:"Where there is an arrangement between the decree-holder and the judgment-debtor for the satisfaction of the decree and the decree-holder does not want any deposit to be made into Court, it is perfectly open to the judgment-debtor to come forward with a petition under O. XXI R. 89 without depositing the amount required to be deposited, under Cl. (b)." This was upset in appeal by the High Court. According to the High Court, O. XXI, R.89 permits the decree-holder and the judgment-debtor to mutually cancel the decree debt and the cancellation of the debt may be either by an adjustment on a constructive payment or by waiver by the decree-holder. The High Court, however, found itself unable to agree with the conclusion of the Subordinate Judge that on the facts of the case the decree-holder could be said to have received the amount shown in the proclamation of sale for the purpose of O. XXI R. 89. 3. There can be no doubt that if at the time when an application under O. XXI. R. 89 is made by the judgment-debtor, the decree has been satisfied or adjusted, the deposit of any money for payment to the decree-holder is not called for. It was argued on behalf of the appellants that a mere promise on the part of the judgment-debtor to take steps to ensure payment of the decretal debt if acceded to by the decree-Holder would have the same effect. Reliance was placed on a judgment of this Court in Union of India v. Kishorilal Gupta and Bros., 1960-l SCR 493 at E 502 - (AIR 1959 SC 1362 at p. 1366). There it was pointed out that:"One of the modes by which a contract can be discharged is by the same process which created it, i.e., by mutual agreement the parties to the original contract may enter into a new contract in substitution of old one." Reference was also made to the rule as stated by Cheshire and Fifoot in their Law of Contract, 3rd Edn. at p. 453: "if what the creditor has accepted in satisfaction is merely his debtors promise to give consideration, and not the performance of that promise. the original cause of action is discharged from the date when the agreement is made." Relying on the above decision, it was contended on behalf of the appellants that even an executory agreement between the decree-holder and the judgment-debtor would have the same effect as the adjustment of a decree, it is necessary to bear in mind that a decree for payment of money is not a contract between the parties although it is possible for the parties to agree upon a course of payment or agree to have the decree satisfied otherwise than by payment of money. For the purpose of this appeal, it is not necessary to go into that question. Assuming that the proposition put forward on behalf of the appellants is correct, it must be shown that there was an agreement between the parties by which the decree-holder agreed to forego his rights under the decree. Paragraph 6 of the petition under O. XXI, R. 89 ) which has been quoted above shows that the decree-holder had merely agreed to postpone realising the decretal amount in case respondents 1 and 2 did not choose to discharge the same. That petition shows clearly that it was anticipated that the Court would be in a position to make a provision for the discharge of the decretal debt. The decree was kept alive and not touched upon in any manner much less extinguished. The decree-holder was prepared to stay his hands in case satisfactory provision for payment of his dues was made in the suit. There was no adjustment of the decree which could be recorded under the provisions of 0. XXI, R. 2; neither had the decree been satisfied. The High Court was therefore, right in its conclusion that the situation was not one which obviated the necessity for the judgment-debtor making a deposit under the provisions of 0. XXI. R. 89 (b) On behalf of the appellants. reference was also made to the fact that the auction purchaser had been permitted by the Court to withdraw the sum of Rs. 24,600 deposited in Court. We were informed that such withdrawal had been permitted but the auction purchaser had once more made the necessary deposit under the orders of the Court. This cannot affect the position in law under O. XXI. R. 89. | 0[ds]3. There can be no doubt that if at the time when an application under O. XXI. R. 89 is made by the judgment-debtor, the decree has been satisfied or adjusted, the deposit of any money for payment to the decree-holder is not called forFor the purpose of this appeal, it is not necessary to go into that question. Assuming that the proposition put forward on behalf of the appellants is correct, it must be shown that there was an agreement between the parties by which the decree-holder agreed to forego his rights under the decree. Paragraph 6 of the petition under O. XXI, R. 89 ) which has been quoted above shows that the decree-holder had merely agreed to postpone realising the decretal amount in case respondents 1 and 2 did not choose to discharge the same. That petition shows clearly that it was anticipated that the Court would be in a position to make a provision for the discharge of the decretal debt. The decree was kept alive and not touched upon in any manner much less extinguished. The decree-holder was prepared to stay his hands in case satisfactory provision for payment of his dues was made in the suit. There was no adjustment of the decree which could be recorded under the provisions of 0. XXI, R. 2; neither had the decree been satisfied. The High Court was therefore, right in its conclusion that the situation was not one which obviated the necessity for the judgment-debtor making a deposit under the provisions of 0. XXI. R. 89 (b) On behalf of the appellants. reference was also made to the fact that the auction purchaser had been permitted by the Court to withdraw the sum of Rs. 24,600 deposited in Court. We were informed that such withdrawal had been permitted but the auction purchaser had once more made the necessary deposit under the orders of the Court. This cannot affect the position in law under O. XXI. R. 89. | 0 | 1,651 | 364 | ### 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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123 for interest. No deposit was made for payment to the decree-holder and it was stated in Para. 6 of the petition that:"The 3rd respondent represented by his mother is impleaded as third respondent in the Scheme Suit O. S. No. 60 of 1957, Sub-Court, Vijayawada, wherein necessary provision for the discharge of the decree debt due to him from the choultry is prayed for and has to be made. At the request of the petitioner to keep up the fair name and prestige of the founders of the choultry, the 3rd respondents mother as guardian and executor agreed to the said course and is willing for an adequate provision for the discharge of the decree debt being made in the said suit and has agreed to postpone realising the decree debt in O. S. No. 116 of 1949. Sub-Court, Vijayawada, till then in case the exiting trustees, respondents 1 and 2 do not choose to discharge the same in the meanwhile. Under the circumstances, the petitioner submits that the Honble Court may be pleased to dispense with the deposit or the amount specified in the proclamation of sale for payment to the decree-holder as required by Cl. (b) of R. 89 of C). XXI. C. P. C." The prayer in the petition was that the sale of the properties in favour of the fourth respondent be set aside and that respondents l and 2 do pay the expenses to be incurred by the petitioner The Subordinate Judge allowed the application observing:"Where there is an arrangement between the decree-holder and the judgment-debtor for the satisfaction of the decree and the decree-holder does not want any deposit to be made into Court, it is perfectly open to the judgment-debtor to come forward with a petition under O. XXI R. 89 without depositing the amount required to be deposited, under Cl. (b)." This was upset in appeal by the High Court. According to the High Court, O. XXI, R.89 permits the decree-holder and the judgment-debtor to mutually cancel the decree debt and the cancellation of the debt may be either by an adjustment on a constructive payment or by waiver by the decree-holder. The High Court, however, found itself unable to agree with the conclusion of the Subordinate Judge that on the facts of the case the decree-holder could be said to have received the amount shown in the proclamation of sale for the purpose of O. XXI R. 89. 3. There can be no doubt that if at the time when an application under O. XXI. R. 89 is made by the judgment-debtor, the decree has been satisfied or adjusted, the deposit of any money for payment to the decree-holder is not called for. It was argued on behalf of the appellants that a mere promise on the part of the judgment-debtor to take steps to ensure payment of the decretal debt if acceded to by the decree-Holder would have the same effect. Reliance was placed on a judgment of this Court in Union of India v. Kishorilal Gupta and Bros., 1960-l SCR 493 at E 502 - (AIR 1959 SC 1362 at p. 1366). There it was pointed out that:"One of the modes by which a contract can be discharged is by the same process which created it, i.e., by mutual agreement the parties to the original contract may enter into a new contract in substitution of old one." Reference was also made to the rule as stated by Cheshire and Fifoot in their Law of Contract, 3rd Edn. at p. 453: "if what the creditor has accepted in satisfaction is merely his debtors promise to give consideration, and not the performance of that promise. the original cause of action is discharged from the date when the agreement is made." Relying on the above decision, it was contended on behalf of the appellants that even an executory agreement between the decree-holder and the judgment-debtor would have the same effect as the adjustment of a decree, it is necessary to bear in mind that a decree for payment of money is not a contract between the parties although it is possible for the parties to agree upon a course of payment or agree to have the decree satisfied otherwise than by payment of money. For the purpose of this appeal, it is not necessary to go into that question. Assuming that the proposition put forward on behalf of the appellants is correct, it must be shown that there was an agreement between the parties by which the decree-holder agreed to forego his rights under the decree. Paragraph 6 of the petition under O. XXI, R. 89 ) which has been quoted above shows that the decree-holder had merely agreed to postpone realising the decretal amount in case respondents 1 and 2 did not choose to discharge the same. That petition shows clearly that it was anticipated that the Court would be in a position to make a provision for the discharge of the decretal debt. The decree was kept alive and not touched upon in any manner much less extinguished. The decree-holder was prepared to stay his hands in case satisfactory provision for payment of his dues was made in the suit. There was no adjustment of the decree which could be recorded under the provisions of 0. XXI, R. 2; neither had the decree been satisfied. The High Court was therefore, right in its conclusion that the situation was not one which obviated the necessity for the judgment-debtor making a deposit under the provisions of 0. XXI. R. 89 (b) On behalf of the appellants. reference was also made to the fact that the auction purchaser had been permitted by the Court to withdraw the sum of Rs. 24,600 deposited in Court. We were informed that such withdrawal had been permitted but the auction purchaser had once more made the necessary deposit under the orders of the Court. This cannot affect the position in law under O. XXI. R. 89.
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### Explanation:
3. There can be no doubt that if at the time when an application under O. XXI. R. 89 is made by the judgment-debtor, the decree has been satisfied or adjusted, the deposit of any money for payment to the decree-holder is not called forFor the purpose of this appeal, it is not necessary to go into that question. Assuming that the proposition put forward on behalf of the appellants is correct, it must be shown that there was an agreement between the parties by which the decree-holder agreed to forego his rights under the decree. Paragraph 6 of the petition under O. XXI, R. 89 ) which has been quoted above shows that the decree-holder had merely agreed to postpone realising the decretal amount in case respondents 1 and 2 did not choose to discharge the same. That petition shows clearly that it was anticipated that the Court would be in a position to make a provision for the discharge of the decretal debt. The decree was kept alive and not touched upon in any manner much less extinguished. The decree-holder was prepared to stay his hands in case satisfactory provision for payment of his dues was made in the suit. There was no adjustment of the decree which could be recorded under the provisions of 0. XXI, R. 2; neither had the decree been satisfied. The High Court was therefore, right in its conclusion that the situation was not one which obviated the necessity for the judgment-debtor making a deposit under the provisions of 0. XXI. R. 89 (b) On behalf of the appellants. reference was also made to the fact that the auction purchaser had been permitted by the Court to withdraw the sum of Rs. 24,600 deposited in Court. We were informed that such withdrawal had been permitted but the auction purchaser had once more made the necessary deposit under the orders of the Court. This cannot affect the position in law under O. XXI. R. 89.
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Chintalapati Srinivasa Raju and Ors Vs. Securities and Exchange Board of India | ground not raised by the Revenue either in the show-cause notice or in the order. 17. In this context, we may usefully refer to the judgment of this Court in the case of Reckitt & Colman of India Ltd. v. CCE [(1997) 10 SCC 379 : (1996) 88 ELT 641 ]. This Court held that it is beyond the competence of the Tribunal to make out in favour of the Revenue a case which the Revenue had never canvassed and which the Appellants had never been required to meet. 18. The impugned order of the Tribunal which had gone beyond the show-cause notice and the order of the Respondent Collector is, therefore, liable to be set aside. 20. However, Shri Singh argued, based on Section 21 of the Securities Contracts (Regulation) Act, 1956 and Clause 35 of the Listing Agreement, which takes us to Regulation 2(1)(h)(i) of the 1997 Regulations, to support the majority judgment of the Appellate Tribunal by stating that as the Appellant was an executive director from 1993 to 2000, he must be said to be a person who is in control as a director of the company and hence a promoter. Regulation 2(1)(h)(i) of the 1997 Regulations states: 2. Definitions (1) In these Regulations, unless the context otherwise requires- (h) "promoter" means- (i) the person or persons who are in control of the company, directly or indirectly, whether as a shareholder, director or otherwise; "Control" is defined by Regulation 2(1)(c) of the 1997 Regulations as follows: (c) "control" shall include the right to appoint majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner; Explanation. (i) Where there are two or more persons in control over the target company, the cesser of any one of such persons from such control shall not be deemed to be a change in control of management nor shall any change in the nature and quantum of control amongst them constitute change in control of management: PROVIDED that the transfer from joint control to sole control is effected in accordance with Clause (e) of sub-Regulation (1) of Regulation 3. (ii) If consequent upon change in control of the target company in accordance with Regulation 3, the control acquired is equal to or less than the control exercised by person(s) prior to such acquisition of control, such control shall not be deemed to be a change in control. Even though the definition of "control" in the 1997 Regulations is an inclusive one, yet the definition shows that control must mean a right to appoint majority of directors as a shareholder or to control management or policy decisions exercisable by persons in any manner. It may be pointed out, as has been correctly argued by Shri Viswanathan in rejoinder, that the Appellant was an executive director on a fixed monthly salary, which was roughly in the range of Rs. 1,00,000/- per month, when he stepped down as an executive director in 2000. After stepping down, it was pointed out to us that the salary was stopped, and he was paid only for board meetings which he attended. Nothing has been shown to us to indicate that, on facts, such executive salaried director was in any manner in control of SCSL directly or indirectly. The absence of the word "independent" in the annual report also does not take us very far, inasmuch as it is admitted that he was a non-executive director from 2000 to 2003, who only attended six board meetings and received salary therefor. We have not been shown how the Appellant was in any manner responsible for actions taken by those in the management of SCSL. We have already demonstrated that the minority judgment is much more detailed and correct than the majority judgment of the Appellant Tribunal. We accept Shri Singhs submission that in cases like the present, a reasonable expectation to be in the know of things can only be based on reasonable inferences drawn from foundational facts. This Court in SEBI v. Kishore R. Ajmera, (2016) 6 SCC 368 at 383, stated: 26. It is a fundamental principle of law that proof of an allegation leveled against a person may be in the form of direct substantive evidence or, as in many cases, such proof may have to be inferred by a logical process of reasoning from the totality of the attending facts and circumstances surrounding the allegations/charges made and leveled. While direct evidence is a more certain basis to come to a conclusion, yet, in the absence thereof the Courts cannot be helpless. It is the judicial duty to take note of the immediate and proximate facts and circumstances surrounding the events on which the charges/allegations are founded and to reach what would appear to the Court to be a reasonable conclusion therefrom. The test would always be that what inferential process that a reasonable/prudent man would adopt to arrive at a conclusion. 21. We are of the view that from the mere fact that the Appellant promoted two joint venture companies, one of which ultimately merged with SCSL, and the fact that he was a co-brother of B. Ramalinga Raju, without more, cannot be stated to be foundational facts from which an inference of reasonably being expected to be in the knowledge of confidential information can be formed. The fact that the Appellant was to be continued as a director till replacement again does not take us anywhere. Shri Viswanathan has shown us that two other independent non-executive directors were appointed in his place on and from 23.1.2003. What is clear is that the Appellant devoted all his energies to the businesses he was running, on and after resigning as an executive director of SCSL, as a result of which the salary he was being paid by SCSL was discontinued. | 1[ds]In the present case, the new 2015 Regulations also throw considerable light on the definition of "insider", as an insider is now defined to mean only a person who is a connected person or a person who is in possession of or having access to unpublished price sensitive information. Obviously, post 2015, an "insider" need not satisfy the second test of the 1992 Regulations and it is enough that such person be a "connected person" as defined. The disjunctive "or" contained in the 2015 Regulations must be contrasted with the expression "and" contained in the 1992 Regulations. Therefore, it is clear that the majority view of the Appellate Tribunal, in giving effect to only the first part of Regulation 2(e)(i) of the 1992 Regulations, cannot be sustained in law11. Further, under the second part of Regulation 2(e)(i), the connected person must be "reasonably expected" to have access to unpublished price sensitive information. The expression "reasonably expected" cannot be a mere ipse dixit-there must be material to show that such person can reasonably be so expected to have access to unpublished price sensitive information12. This brings us to the minority judgment of the Appellate Tribunal. First and foremost, this judgment correctly brings out the role of the expression "and" contained in Regulation 2(e)(i). The judgment also correctly appreciates the difference in language in Regulation 3 before and after it was amended in 2002, and contrasts the expression "on the basis of" with the expression "when in possession of". The minority judgment then goes on to refer and rely upon the SFIOs report, which found that the manipulation of financial statements was done by B. Ramalinga Raju and his cohorts, and was suppressed from the board of directors, which would include the Appellant as a member of such board13. The said judgment went on to hold that the Appellant cannot be described as a promoter inasmuch as the annual reports, which contained his signatures as a director, did not show him as a promoter. What was done behind his back was that B. Ramalinga Raju and B. Rama Raju described him as a promoter only to various stock exchanges in letters written to those exchanges without the knowledge or consent of the Appellant. The minority judgment also refers to the fact that the Appellants shares were not subject to a lock-in period at the time of merger of SES into SCSL, which lock-in period was mandated by law for promoters. In fact, the Appellant was one of the persons duped by B. Ramalinga Raju and his brother B. Rama Raju and was, therefore, a victim of the fraud perpetrated by the former Chairman of SCSL. One very important finding of the minority judgment is as follows:17. There is no dispute that the Appellant, who was wife of the Managing Director, was appointed as a Director of the CompanyM/s. Elite International (P) Ltd. on 1-7-2004 and had also executed a letter of guarantee on 19-1-2005. The cheques in question were issued during April 2008 to September 2008. So far as the dishonour of cheques is concerned, admittedly the cheques were not signed by the Appellant. There is also no dispute that the Appellant was not the Managing Director but only a non-executive Director of the Company. Non-executive Director is no doubt a custodian of the governance of the company but is not involved in the day-to-day affairs of the running of its business and only monitors the executive activity. To fasten vicarious liability Under Section 141 of the Act on a person, at the material time that person shall have been at the helm of affairs of the company, one who actively looks after the day-to-day activities of the company and is particularly responsible for the conduct of its business. Simply because a person is a Director of a company, does not make him liable under the NI Act. Every person connected with the Company will not fall into the ambit of the provision. Time and again, it has been asserted by this Court that only those persons who were in charge of and responsible for the conduct of the business of the Company at the time of commission of an offence will be liable for criminal action. A Director, who was not in charge of and was not responsible for the conduct of the business of the Company at the relevant time, will not be liable for an offence Under Section 141 of the NI Act21. We are of the view that from the mere fact that the Appellant promoted two joint venture companies, one of which ultimately merged with SCSL, and the fact that he was a co-brother of B. Ramalinga Raju, without more, cannot be stated to be foundational facts from which an inference of reasonably being expected to be in the knowledge of confidential information can be formed. The fact that the Appellant was to be continued as a director till replacement again does not take us anywhere. Shri Viswanathan has shown us that two other independent non-executive directors were appointed in his place on and from 23.1.2003. What is clear is that the Appellant devoted all his energies to the businesses he was running, on and after resigning as an executive director of SCSL, as a result of which the salary he was being paid by SCSL was discontinued25. On facts, the Appellant sold 8,00,000 shares from 4.1.2001 to 14.3.2001. As has been pointed out hereinabove, the occurrence of the UPSI was only from 31.3.2001 and inasmuch as these sales were made prior to this date, obviously, the 1992 Regulations would not get attracted. The minority judgment of the Appellate Tribunal referred to this and stated that the result would be the same as the result in Appeal No. 462 of 2015, namely that of B. Jhansi Rani, who was the wife of B. Suryanarayana Raju, brother of B. Ramalinga Raju and B. Rama Raju. In that case also, shares had been sold prior to the occurrence of the UPSI and on the self-same ground, B. Jhansi Ranis appeal had been allowed by the majority judgment of the Appellate Tribunal with the minority concurring. The minority judgment further went on to state that 24,00,000 shares also, which were never sold but were merely returned to Chintalapati Srinivasa Raju, could not form the basis of any disgorgement order. We agree with the same27. Obviously, the Appellant company does not have persons who are relatives of persons mentioned in Sub-clauses (vi), (vii) and (viii)-under these sub-clauses, a person is deemed to be a connected person if such person is a relative of persons in Clauses (i) to (v); or is a banker of the company; or is a relative of a connected personHe was a connected person to Shri Chintalapati Srinivasa Raju, being his father, but as the shares which stood in his name were sold in August, 2005, he could not possibly be a relative of a connected person as Shri Chintalapati Srinivasa Raju himself ceased to be a connected person on and from July, 2003. The minority judgment of the Appellate Tribunal correctly appreciates this position in the following manner:142. The Appellant was the father of CSR. The Appellant sold 2,50,000 shares on 04.08.2005. Appellant expired on 03.12.2007. The Impugned Order holds the Appellant to be a person deemed to be connected under Regulation 2(h)(viii), since he was a relative of a connected person (CSR) (Para 37). However, as discussed above, CSR ceased to be a connected person on 22.07.2003. Consequently, when the Appellant sold the shares on 04.08.2005, he could not be "a deemed to be connected person" since CSR himself ceased to be a connected person. On this short point alone, the order of the WTM is liable to be quashed and set asideIndeed, this is the basis of both the Whole Time Members judgment as well as the majority judgment of the Appellate Tribunal. Given the fact that this lady was not proceeded against by the CBI or by the Enforcement Directorate and that the SFIOs report does not, in any manner, refer to her, and given the fact that she was neither promoter nor director of SCSL, it is obvious that the test of the second part of Clause 2(e)(i) is not met in the facts of this appeal. Also, it must be remembered that had she been in possession of UPSI, she would also have sold shares at their peak price instead of selling them at a depressed price in the year 2003However, they were neither directors nor promoters of SCSL and were not involved in the fraud perpetrated by their father, as has been held in their favour by the Appellate Tribunal. Also, the CBI and the Enforcement Directorate did not proceed against them and the SFIOs report says nothing about their involvement. Both these brothers sold off their shares in SCSL in August and September, 2005 at a price of roughly Rs. 518/- per share, way below the price of Rs. 966.80/- at the end of 2006 when their father sold off his shares. According to them, therefore, the Appellate Tribunal was wrong in putting 2 and 2 together and making 22 only by virtue of the fact that they were the sons of B. Ramalinga Raju. Also, insofar as B. Rama Raju (Jr.) was concerned, the findings of the Appellate Tribunal that he had given a presentation to the Board of directors of SCSL in the meeting on 26.12.2008 in support of the proposed merger of Maytas Properties Limited with SCSL is factually incorrect, as has been stated by him in a subsequent application, and which is not denied by the SEBI. Given the fact that the second limb of Clause 2(e)(i) cannot be put against either of these Appellants, in that there is no evidence of any complicity in the fraud committed by their father; given the fact that they were expressly exonerated of the said fraud by the Appellate Tribunal; and given the fact that they were running independent businesses and were neither directors nor promoters of SCSL, and that they sold their shares for business purposes at a price much less than the peak price at which their father sold shares of SCSL in 2006, no case has been made against themIn this context, the Appellate Tribunal held:h) It is now established that Ramalinga Raju and Rama Raju manipulated the books of Satyam during the period from 2001 to 2008. During that period Ramalinga Raju, Rama Raju and their wives transferred their shareholding in Satyam to SRSR and SRSR in turn pledged those shares for obtaining loan of Rs. 1258.88 crore to the group concerns and as the loan was not repaid the pledged shares have been sold by invoking the pledge. Thus, on one hand Ramalinaga Raju and Rama Raju manipulated the books of Satyam and ensured that the market price of Satyam were higher and on the other hand through SRSR got the Satyam shares pledged and obtained higher loan on the basis of higher market price of Satyam shares. In these circumstances, inference drawn by the WTM of SEBI that SRSR was reasonably expected to have access to the UPSI and hence an insider under Regulation 2(e) of the PIT Regulations cannot be faulted. Consequently, the decision of the WTM of SEBI that SRSR indulged in pledging the shares of Satyam belonging to Ramalinga Raju, Rama Raju and their spouses in contravention of Regulation 3 of the PIT Regulations cannot be faultedi) Apart from the above, mode and the manner in which SRSR was incorporated, mode and the manner in which shares of Satyam were transferred by Ramalinga Raju, Rama Raju and their wives to SRSR and the mode and the manner in which the shares of Satyam were pledged and the pledged amounts were utilized, leave no manner of doubt that SRSR was a front entity established by Ramalinga Raju and Rama Raju for off loading their shareholding in Satyam when the market value of Satyam shares were higher on account of fictitious bank balances shown in the books of Satyam. Therefore, argument that SRSR was not an insider and had not pledged the shares of Satyam when in possession of UPSI cannot be acceptedxxx xxx xxxl) In the result, decision of the WTM of SEBI that SRSR was an insider under the PIT Regulations and that SRSR pledged and got the shares of Satyam belonging to Ramalinga Raju, Rama Raju and their spouses sold when in possession of UPSI and thus SRSR violated SEBI Act and the PIT Regulations cannot be faulted38. From this Section, it is clear that the report can be used as evidence in any other proceeding. Even though it is correct to state that this report was delivered on 13.4.2009, i.e. before the show cause notice was issued on 19.6.2009, the mere fact that this was not put against the Appellant in the show cause notice cannot be any reason for us not to independently view the same. The Appellant has not chosen to assail the findings contained in this report in a writ petition filed before the High Court. Under Section 246 of the Companies Act, 1956, this Court is empowered to look at the same as evidence of the opinion of the inspector concerned in relation to any matter contained in the report. By virtue of Section 246, therefore, it is possible for us to appreciate the role of the Appellant in the so-called Satyam scamWhile it is true that adjudication proceedings and criminal proceedings are separate proceedings, the relevance of the Special Courts judgment is only for the purpose of showing that the second part of the definition of an "insider" is made out in the Appellants case, for, if the Appellant, along with his brothers, was party to the fraud practiced on the public, it is obvious that he was reasonably expected to have access to UPSI in respect of the securities of SCSL. This Appellants case, therefore, stands apart from the other family members of B. Ramalinga Raju, in that the SFIOs report as well as the aforesaid judgment clearly and unmistakably point to his complicity, unlike that of the other family members, in the fraud committed from 2001 onwards. | 1 | 9,129 | 2,662 | ### Instruction:
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ground not raised by the Revenue either in the show-cause notice or in the order. 17. In this context, we may usefully refer to the judgment of this Court in the case of Reckitt & Colman of India Ltd. v. CCE [(1997) 10 SCC 379 : (1996) 88 ELT 641 ]. This Court held that it is beyond the competence of the Tribunal to make out in favour of the Revenue a case which the Revenue had never canvassed and which the Appellants had never been required to meet. 18. The impugned order of the Tribunal which had gone beyond the show-cause notice and the order of the Respondent Collector is, therefore, liable to be set aside. 20. However, Shri Singh argued, based on Section 21 of the Securities Contracts (Regulation) Act, 1956 and Clause 35 of the Listing Agreement, which takes us to Regulation 2(1)(h)(i) of the 1997 Regulations, to support the majority judgment of the Appellate Tribunal by stating that as the Appellant was an executive director from 1993 to 2000, he must be said to be a person who is in control as a director of the company and hence a promoter. Regulation 2(1)(h)(i) of the 1997 Regulations states: 2. Definitions (1) In these Regulations, unless the context otherwise requires- (h) "promoter" means- (i) the person or persons who are in control of the company, directly or indirectly, whether as a shareholder, director or otherwise; "Control" is defined by Regulation 2(1)(c) of the 1997 Regulations as follows: (c) "control" shall include the right to appoint majority of the directors or to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner; Explanation. (i) Where there are two or more persons in control over the target company, the cesser of any one of such persons from such control shall not be deemed to be a change in control of management nor shall any change in the nature and quantum of control amongst them constitute change in control of management: PROVIDED that the transfer from joint control to sole control is effected in accordance with Clause (e) of sub-Regulation (1) of Regulation 3. (ii) If consequent upon change in control of the target company in accordance with Regulation 3, the control acquired is equal to or less than the control exercised by person(s) prior to such acquisition of control, such control shall not be deemed to be a change in control. Even though the definition of "control" in the 1997 Regulations is an inclusive one, yet the definition shows that control must mean a right to appoint majority of directors as a shareholder or to control management or policy decisions exercisable by persons in any manner. It may be pointed out, as has been correctly argued by Shri Viswanathan in rejoinder, that the Appellant was an executive director on a fixed monthly salary, which was roughly in the range of Rs. 1,00,000/- per month, when he stepped down as an executive director in 2000. After stepping down, it was pointed out to us that the salary was stopped, and he was paid only for board meetings which he attended. Nothing has been shown to us to indicate that, on facts, such executive salaried director was in any manner in control of SCSL directly or indirectly. The absence of the word "independent" in the annual report also does not take us very far, inasmuch as it is admitted that he was a non-executive director from 2000 to 2003, who only attended six board meetings and received salary therefor. We have not been shown how the Appellant was in any manner responsible for actions taken by those in the management of SCSL. We have already demonstrated that the minority judgment is much more detailed and correct than the majority judgment of the Appellant Tribunal. We accept Shri Singhs submission that in cases like the present, a reasonable expectation to be in the know of things can only be based on reasonable inferences drawn from foundational facts. This Court in SEBI v. Kishore R. Ajmera, (2016) 6 SCC 368 at 383, stated: 26. It is a fundamental principle of law that proof of an allegation leveled against a person may be in the form of direct substantive evidence or, as in many cases, such proof may have to be inferred by a logical process of reasoning from the totality of the attending facts and circumstances surrounding the allegations/charges made and leveled. While direct evidence is a more certain basis to come to a conclusion, yet, in the absence thereof the Courts cannot be helpless. It is the judicial duty to take note of the immediate and proximate facts and circumstances surrounding the events on which the charges/allegations are founded and to reach what would appear to the Court to be a reasonable conclusion therefrom. The test would always be that what inferential process that a reasonable/prudent man would adopt to arrive at a conclusion. 21. We are of the view that from the mere fact that the Appellant promoted two joint venture companies, one of which ultimately merged with SCSL, and the fact that he was a co-brother of B. Ramalinga Raju, without more, cannot be stated to be foundational facts from which an inference of reasonably being expected to be in the knowledge of confidential information can be formed. The fact that the Appellant was to be continued as a director till replacement again does not take us anywhere. Shri Viswanathan has shown us that two other independent non-executive directors were appointed in his place on and from 23.1.2003. What is clear is that the Appellant devoted all his energies to the businesses he was running, on and after resigning as an executive director of SCSL, as a result of which the salary he was being paid by SCSL was discontinued.
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not met in the facts of this appeal. Also, it must be remembered that had she been in possession of UPSI, she would also have sold shares at their peak price instead of selling them at a depressed price in the year 2003However, they were neither directors nor promoters of SCSL and were not involved in the fraud perpetrated by their father, as has been held in their favour by the Appellate Tribunal. Also, the CBI and the Enforcement Directorate did not proceed against them and the SFIOs report says nothing about their involvement. Both these brothers sold off their shares in SCSL in August and September, 2005 at a price of roughly Rs. 518/- per share, way below the price of Rs. 966.80/- at the end of 2006 when their father sold off his shares. According to them, therefore, the Appellate Tribunal was wrong in putting 2 and 2 together and making 22 only by virtue of the fact that they were the sons of B. Ramalinga Raju. Also, insofar as B. Rama Raju (Jr.) was concerned, the findings of the Appellate Tribunal that he had given a presentation to the Board of directors of SCSL in the meeting on 26.12.2008 in support of the proposed merger of Maytas Properties Limited with SCSL is factually incorrect, as has been stated by him in a subsequent application, and which is not denied by the SEBI. Given the fact that the second limb of Clause 2(e)(i) cannot be put against either of these Appellants, in that there is no evidence of any complicity in the fraud committed by their father; given the fact that they were expressly exonerated of the said fraud by the Appellate Tribunal; and given the fact that they were running independent businesses and were neither directors nor promoters of SCSL, and that they sold their shares for business purposes at a price much less than the peak price at which their father sold shares of SCSL in 2006, no case has been made against themIn this context, the Appellate Tribunal held:h) It is now established that Ramalinga Raju and Rama Raju manipulated the books of Satyam during the period from 2001 to 2008. During that period Ramalinga Raju, Rama Raju and their wives transferred their shareholding in Satyam to SRSR and SRSR in turn pledged those shares for obtaining loan of Rs. 1258.88 crore to the group concerns and as the loan was not repaid the pledged shares have been sold by invoking the pledge. Thus, on one hand Ramalinaga Raju and Rama Raju manipulated the books of Satyam and ensured that the market price of Satyam were higher and on the other hand through SRSR got the Satyam shares pledged and obtained higher loan on the basis of higher market price of Satyam shares. In these circumstances, inference drawn by the WTM of SEBI that SRSR was reasonably expected to have access to the UPSI and hence an insider under Regulation 2(e) of the PIT Regulations cannot be faulted. Consequently, the decision of the WTM of SEBI that SRSR indulged in pledging the shares of Satyam belonging to Ramalinga Raju, Rama Raju and their spouses in contravention of Regulation 3 of the PIT Regulations cannot be faultedi) Apart from the above, mode and the manner in which SRSR was incorporated, mode and the manner in which shares of Satyam were transferred by Ramalinga Raju, Rama Raju and their wives to SRSR and the mode and the manner in which the shares of Satyam were pledged and the pledged amounts were utilized, leave no manner of doubt that SRSR was a front entity established by Ramalinga Raju and Rama Raju for off loading their shareholding in Satyam when the market value of Satyam shares were higher on account of fictitious bank balances shown in the books of Satyam. Therefore, argument that SRSR was not an insider and had not pledged the shares of Satyam when in possession of UPSI cannot be acceptedxxx xxx xxxl) In the result, decision of the WTM of SEBI that SRSR was an insider under the PIT Regulations and that SRSR pledged and got the shares of Satyam belonging to Ramalinga Raju, Rama Raju and their spouses sold when in possession of UPSI and thus SRSR violated SEBI Act and the PIT Regulations cannot be faulted38. From this Section, it is clear that the report can be used as evidence in any other proceeding. Even though it is correct to state that this report was delivered on 13.4.2009, i.e. before the show cause notice was issued on 19.6.2009, the mere fact that this was not put against the Appellant in the show cause notice cannot be any reason for us not to independently view the same. The Appellant has not chosen to assail the findings contained in this report in a writ petition filed before the High Court. Under Section 246 of the Companies Act, 1956, this Court is empowered to look at the same as evidence of the opinion of the inspector concerned in relation to any matter contained in the report. By virtue of Section 246, therefore, it is possible for us to appreciate the role of the Appellant in the so-called Satyam scamWhile it is true that adjudication proceedings and criminal proceedings are separate proceedings, the relevance of the Special Courts judgment is only for the purpose of showing that the second part of the definition of an "insider" is made out in the Appellants case, for, if the Appellant, along with his brothers, was party to the fraud practiced on the public, it is obvious that he was reasonably expected to have access to UPSI in respect of the securities of SCSL. This Appellants case, therefore, stands apart from the other family members of B. Ramalinga Raju, in that the SFIOs report as well as the aforesaid judgment clearly and unmistakably point to his complicity, unlike that of the other family members, in the fraud committed from 2001 onwards.
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Punjab Distilling Industries Ltd Vs. The Commissioner Of Income-Tax, Simla | Sons case, 1953 S C R 1057 : (A I R 1953 S C 145), the deposit was in the nature of the assessees trading structure and anterior to the trading operations, as were the deposits considered in Shell Company case, 1951-32 Tax Cas 133. In the case in hand the deposit was part of each trading transaction. It was refundable under the terms of the contract relating to a trading transaction under which it had been made; it was not made under an independent contract nor was its refund conditioned by a collateral contract, as happened in Lakshmanier and Sons case 1953 SC R 1057 : (A I R 1953 S C 145)16. We therefore think that the present case is governed by the arrangement covering the second period and not the third period mentioned in Lakshmanier and Suns case 1953 S C R 1057: (A I R 1953 S C 145), and come to the conclusion that the amounts with which we are concerned were trading receipts.17. Mr. Sastri also referred us to Morley v. Tattersall, (1938) 22 Tax Cas 51 and contended that the amounts with which we are concerned, were of the same kind as those considered in that case and were not income. It seems to us that there is no similarity between the two cases at all. Tattersall was a firm who sold horses of its constituents on their behalf and received the price which it was liable to pay them. It so happened that in the course of years various customers did not come and demand the amounts due to them. Initially Tattersall showed these amounts in its accounts as liabilities which they really were. Later it thought that it would never have to pay back these amounts and thereupon transferred them to the credit of its partners. The Revenue sought to tax the amounts so transferred as Tattersalls income. The question was whether the amounts upon transfer became Tattersalls income. It was never contended that the amounts when received as price of the constituents horses sold were Tattersalls income and the only contention was that they became income upon being transferred to the credit of the partners. It was held that the amounts had not by being entered on the credit side, become income of the firm. Sir Wilfrid Greene said at p. 65."Mr. Hills argument was to the effect that, although they were not trading receipts at the moment of receipt, they had at that moment the potentiality of becoming trading receipts. That pro-position involves a view of Income-tax Law in which I can discover no merit except that of novelty."Then again he said :"It seems to me that the quality and nature of a receipt for Income-tax purposes is fixed once and for all when it is received. What the partners did in this case, as I have said, was to decide among themselves that what they had previously regarded as a liability of the firm they would not, for practical reasons, regard as a liability; but that does not mean that at that moment they received something, nor does it mean that at that moment they imprinted upon some existing asset a quality different from what it had possessed before. There was no existing asset at all at that time."18. All that this case decided was that moneys which were not when received, income - and as to this there was no question - could never later become income. With such a case we are not concerned. The case turned on the fact that the moneys received by Tattersall were never its moneys; they had been received on behalf of others and that receipt only created a liability towards them. Now it seems to us quite impossible to say that the amounts with which we are concerned were not the appellants moneys in the sense that the constituents moneys in the hands of Tattersall were not its. The amounts in this case were not received on account of any one but the appellant No doubt these moneys might have to be refunded it certain things happened which however might never happen, but that did not make them the moneys of those who might become entitled to the refund.19. Mr. Sastri referred us to the observations of Sir Wilfrid Greene M. R. in 1938-22 Tax Cas 51 at p. 65 to the effect that,"The money which was received was money which had not got any profit making quality about it; it was money which, in a business sense, was a clients money and nobody elses"and contended that the amounts involved in the present case were of the same nature. We are unable to agree. If we are right in our view that the amounts were trading receipts, it follows that they must have a profit making quality about them. Their payment was insisted upon as a condition upon which alone the liquor would be supplied with an agreement that they would be repaid on the return of the buttles. They were part of the transactions of sale of liquor which produced the profit and therefore they had a profit making quality. Again, a wholesaler was quite free to return the bottles or not as he liked and if be did not return them, the appellant had no liability to refund. It would then keep the moneys as its own and they would then certainly be profit. The moneys when paid were the moneys of the appellant and were thereafter in no sense the moneys of the persons who paid them.20. Having given the matter our anxious consideration which the difficulties involved in it require, we think that the correct view to take is that the amounts paid to the appellant and described as "Empty Bottles Return Security Deposit" were trading receipts and therefore income of the appellant assessable to tax.We agree with the High Court that the question framed for decision in this case should be answered in the affirmative.2 | 0[ds]We think that the High Court took substantially a correct view of the matter when it said thatin realising these amounts "the company was really charging an extra price for the bottles". It is clear to us that the trade consisted of sale of bottled liquor and the consideration for the sale was constituted by several amounts respectively called, the price of the liquor, the price of the bottles and the security deposit. Unless all these sums were paid the appellant would not have sold the liquor. So the amount which was called security deposit was actually a part of the consideration for the sale and therefore part of the price of what was sold.Nor does it make any difference that the price of the bottles was entered in the general trading account while the so-called deposit was entered in a separate ledger termed "empty bottles return deposit account" for, what was a consideration for the sale cannot cease to be so by being written up in the books in a particular manner.Again the fact that the money paid as price of the bottles was repaid as and when the bottles were returned while the other moneys were repaid in full when 90 per cent of the bottles were returned does not affect the question for none of these sums ceased to be parts of the consideration because it had been agreed that they would be refunded in different manners.It is not contended that the fact that the additional sums might have to be refunded showed that they were not part of the price. It could not be so contended because what was expressly said to be the price of bottles and admitted to be price was also refundable. If so, then a slightly different method providing for their refund cannot by itself prevent these additional sums from beingwe are unable to agree. There could be no security given for the return of the bottles unless there was a right to their return for if there was no such right, there would be nothing to secure. Now we find no trace of such a right in the statement of the case. The wholesalers were clearly under no obligation to return the bottles.The only thing that Mr. Sastri could point out for establishing such an obligation was the use of the words "security deposit". We are unable to hold that these words alone are sufficient to create an obligation in the wholesalers to return the bottles which they had bought. If it had been intended to impose an obligation on the wholesalers to return the bottles, these would not have been sold to them at all and a bargain would have been expressly made for the return of the bottles and the security deposit would then have been sensible and secured their return.The fact that there was no time limit fixed for the return of the bottles to obtain the refund also indicates that there was no obligation to return the bottles. The substance of the bargain clearly was that the appellant having sold the bottles agreed to take them back and repay all the amounts paid in respect of them.It would therefore appear that the deposits in that case were held not to be trading receipts because they had not been made as part of a trading transaction. It was held that they had been received anterior to the commencement of the trading transactions and really formed the trading structure of the Company. The character of the amounts with which we are concerned is entirely different. They were parts of the trading transactions themselves and very essential parts : the appellant would not sell liquor unless these amounts were paid and the trade of the appellant was to make profit out of these sales. The fact that in certain circumstances these amounts had to be repaid did not alter their nature as trading receipts. We have already said that it is not disputed that what was expressly termed as price of bottles was a trading receipt though these had to be repaid in almost similar circumstances. We may point out that it had not been said in Shell Company case 1951-32 Tax Cas 133 that the deposits were not trading receipts for the reason that they might have to be refunded; the reason for the decision was otherwise as we have earlier pointed out, namely, that they were no part of the trading transactions. We therefore think that the deposits dealt with in the Shell Company case 1951-32 Tax Cas 133 were entirely of a different nature and that case does not help.It seems to us that the amounts involved in the present case were exactly of the nature of the deposits made in the second period in Lakshmanier and Sons case, 1953 S C R 1057 : (A I R 1953 S C 145). There, as here, as soon as a transaction of sale was made the seller received certain moneys in respect of it. It is true that in Lakshmanier and Sons case, 1953 S C R 1057 : (A I R 1953 S C 145), the transaction was a contract to sell goods in future whereas in the present case the transaction was a sale completed by delivery of the goods and receipt of the consideration. But that cannot change the nature of the payment. In Lakshmanier and Sons case, 1953 S C R 1057 : (A I R 1953 S C 145) the payment initially made was refundable after the price had been paid; in the present case the contract is to refund the amount on the return of the bottles already sold. In each case therefore the payment was made as part of a trading transaction and in each case it was refundable on certain events happening. In each case again the payment was described as a deposit. As in that case, so in the present case, the payment cannot be taken to have been made by way of a security deposit. We must therefore on the authority of Lakshmanier and Sons case, 1953 S C R 1057 : (A I R 1953 S C 145), hold the amounts in the present case to have been trading receipts.We therefore think that the present case is governed by the arrangement covering the second period and not the third period mentioned in Lakshmanier and Suns case 1953 S C R 1057: (A I R 1953 S C 145), and come to the conclusion that the amounts with which we are concerned were tradingare unable to agree. If we are right in our view that the amounts were trading receipts, it follows that they must have a profit making quality about them. Their payment was insisted upon as a condition upon which alone the liquor would be supplied with an agreement that they would be repaid on the return of the buttles. They were part of the transactions of sale of liquor which produced the profit and therefore they had a profit making quality. Again, a wholesaler was quite free to return the bottles or not as he liked and if be did not return them, the appellant had no liability to refund. It would then keep the moneys as its own and they would then certainly be profit. The moneys when paid were the moneys of the appellant and were thereafter in no sense the moneys of the persons who paid them.20. Having given the matter our anxious consideration which the difficulties involved in it require, we think that the correct view to take is that the amounts paid to the appellant and described as "Empty Bottles Return Security Deposit" were trading receipts and therefore income of the appellant assessable to tax.We agree with the High Court that the question framed for decision in this case should be answered in the affirmative. | 0 | 5,729 | 1,401 | ### Instruction:
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Sons case, 1953 S C R 1057 : (A I R 1953 S C 145), the deposit was in the nature of the assessees trading structure and anterior to the trading operations, as were the deposits considered in Shell Company case, 1951-32 Tax Cas 133. In the case in hand the deposit was part of each trading transaction. It was refundable under the terms of the contract relating to a trading transaction under which it had been made; it was not made under an independent contract nor was its refund conditioned by a collateral contract, as happened in Lakshmanier and Sons case 1953 SC R 1057 : (A I R 1953 S C 145)16. We therefore think that the present case is governed by the arrangement covering the second period and not the third period mentioned in Lakshmanier and Suns case 1953 S C R 1057: (A I R 1953 S C 145), and come to the conclusion that the amounts with which we are concerned were trading receipts.17. Mr. Sastri also referred us to Morley v. Tattersall, (1938) 22 Tax Cas 51 and contended that the amounts with which we are concerned, were of the same kind as those considered in that case and were not income. It seems to us that there is no similarity between the two cases at all. Tattersall was a firm who sold horses of its constituents on their behalf and received the price which it was liable to pay them. It so happened that in the course of years various customers did not come and demand the amounts due to them. Initially Tattersall showed these amounts in its accounts as liabilities which they really were. Later it thought that it would never have to pay back these amounts and thereupon transferred them to the credit of its partners. The Revenue sought to tax the amounts so transferred as Tattersalls income. The question was whether the amounts upon transfer became Tattersalls income. It was never contended that the amounts when received as price of the constituents horses sold were Tattersalls income and the only contention was that they became income upon being transferred to the credit of the partners. It was held that the amounts had not by being entered on the credit side, become income of the firm. Sir Wilfrid Greene said at p. 65."Mr. Hills argument was to the effect that, although they were not trading receipts at the moment of receipt, they had at that moment the potentiality of becoming trading receipts. That pro-position involves a view of Income-tax Law in which I can discover no merit except that of novelty."Then again he said :"It seems to me that the quality and nature of a receipt for Income-tax purposes is fixed once and for all when it is received. What the partners did in this case, as I have said, was to decide among themselves that what they had previously regarded as a liability of the firm they would not, for practical reasons, regard as a liability; but that does not mean that at that moment they received something, nor does it mean that at that moment they imprinted upon some existing asset a quality different from what it had possessed before. There was no existing asset at all at that time."18. All that this case decided was that moneys which were not when received, income - and as to this there was no question - could never later become income. With such a case we are not concerned. The case turned on the fact that the moneys received by Tattersall were never its moneys; they had been received on behalf of others and that receipt only created a liability towards them. Now it seems to us quite impossible to say that the amounts with which we are concerned were not the appellants moneys in the sense that the constituents moneys in the hands of Tattersall were not its. The amounts in this case were not received on account of any one but the appellant No doubt these moneys might have to be refunded it certain things happened which however might never happen, but that did not make them the moneys of those who might become entitled to the refund.19. Mr. Sastri referred us to the observations of Sir Wilfrid Greene M. R. in 1938-22 Tax Cas 51 at p. 65 to the effect that,"The money which was received was money which had not got any profit making quality about it; it was money which, in a business sense, was a clients money and nobody elses"and contended that the amounts involved in the present case were of the same nature. We are unable to agree. If we are right in our view that the amounts were trading receipts, it follows that they must have a profit making quality about them. Their payment was insisted upon as a condition upon which alone the liquor would be supplied with an agreement that they would be repaid on the return of the buttles. They were part of the transactions of sale of liquor which produced the profit and therefore they had a profit making quality. Again, a wholesaler was quite free to return the bottles or not as he liked and if be did not return them, the appellant had no liability to refund. It would then keep the moneys as its own and they would then certainly be profit. The moneys when paid were the moneys of the appellant and were thereafter in no sense the moneys of the persons who paid them.20. Having given the matter our anxious consideration which the difficulties involved in it require, we think that the correct view to take is that the amounts paid to the appellant and described as "Empty Bottles Return Security Deposit" were trading receipts and therefore income of the appellant assessable to tax.We agree with the High Court that the question framed for decision in this case should be answered in the affirmative.2
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be no security given for the return of the bottles unless there was a right to their return for if there was no such right, there would be nothing to secure. Now we find no trace of such a right in the statement of the case. The wholesalers were clearly under no obligation to return the bottles.The only thing that Mr. Sastri could point out for establishing such an obligation was the use of the words "security deposit". We are unable to hold that these words alone are sufficient to create an obligation in the wholesalers to return the bottles which they had bought. If it had been intended to impose an obligation on the wholesalers to return the bottles, these would not have been sold to them at all and a bargain would have been expressly made for the return of the bottles and the security deposit would then have been sensible and secured their return.The fact that there was no time limit fixed for the return of the bottles to obtain the refund also indicates that there was no obligation to return the bottles. The substance of the bargain clearly was that the appellant having sold the bottles agreed to take them back and repay all the amounts paid in respect of them.It would therefore appear that the deposits in that case were held not to be trading receipts because they had not been made as part of a trading transaction. It was held that they had been received anterior to the commencement of the trading transactions and really formed the trading structure of the Company. The character of the amounts with which we are concerned is entirely different. They were parts of the trading transactions themselves and very essential parts : the appellant would not sell liquor unless these amounts were paid and the trade of the appellant was to make profit out of these sales. The fact that in certain circumstances these amounts had to be repaid did not alter their nature as trading receipts. We have already said that it is not disputed that what was expressly termed as price of bottles was a trading receipt though these had to be repaid in almost similar circumstances. We may point out that it had not been said in Shell Company case 1951-32 Tax Cas 133 that the deposits were not trading receipts for the reason that they might have to be refunded; the reason for the decision was otherwise as we have earlier pointed out, namely, that they were no part of the trading transactions. We therefore think that the deposits dealt with in the Shell Company case 1951-32 Tax Cas 133 were entirely of a different nature and that case does not help.It seems to us that the amounts involved in the present case were exactly of the nature of the deposits made in the second period in Lakshmanier and Sons case, 1953 S C R 1057 : (A I R 1953 S C 145). There, as here, as soon as a transaction of sale was made the seller received certain moneys in respect of it. It is true that in Lakshmanier and Sons case, 1953 S C R 1057 : (A I R 1953 S C 145), the transaction was a contract to sell goods in future whereas in the present case the transaction was a sale completed by delivery of the goods and receipt of the consideration. But that cannot change the nature of the payment. In Lakshmanier and Sons case, 1953 S C R 1057 : (A I R 1953 S C 145) the payment initially made was refundable after the price had been paid; in the present case the contract is to refund the amount on the return of the bottles already sold. In each case therefore the payment was made as part of a trading transaction and in each case it was refundable on certain events happening. In each case again the payment was described as a deposit. As in that case, so in the present case, the payment cannot be taken to have been made by way of a security deposit. We must therefore on the authority of Lakshmanier and Sons case, 1953 S C R 1057 : (A I R 1953 S C 145), hold the amounts in the present case to have been trading receipts.We therefore think that the present case is governed by the arrangement covering the second period and not the third period mentioned in Lakshmanier and Suns case 1953 S C R 1057: (A I R 1953 S C 145), and come to the conclusion that the amounts with which we are concerned were tradingare unable to agree. If we are right in our view that the amounts were trading receipts, it follows that they must have a profit making quality about them. Their payment was insisted upon as a condition upon which alone the liquor would be supplied with an agreement that they would be repaid on the return of the buttles. They were part of the transactions of sale of liquor which produced the profit and therefore they had a profit making quality. Again, a wholesaler was quite free to return the bottles or not as he liked and if be did not return them, the appellant had no liability to refund. It would then keep the moneys as its own and they would then certainly be profit. The moneys when paid were the moneys of the appellant and were thereafter in no sense the moneys of the persons who paid them.20. Having given the matter our anxious consideration which the difficulties involved in it require, we think that the correct view to take is that the amounts paid to the appellant and described as "Empty Bottles Return Security Deposit" were trading receipts and therefore income of the appellant assessable to tax.We agree with the High Court that the question framed for decision in this case should be answered in the affirmative.
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Dwarikesh Sugar Inds.Ltd Vs. Prem Heavy Engg. Works P.Ltd | whatsoever the Guarantor hereby undertakes that the Sellers shall furnish a fresh or renewed guarantee on the Purchasers pro forma for such further period as the purchasers may intimate failing which the guarantor shall pay to the purchaser a sum not exceeding Rs. 51,70,000/- (Rupees fifty one lacs seventy thousand only) or the residual amount of balance unadjusted advance left after proportionate adjustment in accordance with clause 1 above as the purchaser may demand." 29. No plea was taken before the Courts below, and no document has been shown to us by the respondents, which can prima facie indicate that the full amount of advance had been adjusted under Clause 13 of the main contract between the appellant and the defendant No. 1. According to the appellants, the original guarantee was for Rs. 51,70,000/- but the same, after adjustment of the advance, in terms of clause 13 of the main agreement, stood reduced to Rs. 33,00,000/-. This amount was still outstanding and, therefore, the bank guarantee had not come to an end and was rightly invoked. 30. Coming to the allegation of fraud, it is an admitted fact that in the plaint itself, there was no such allegation. It was initially only in the first application for the grant of injunction that in a paragraph it has been mentioned that the appellant herein had invoked the bank guarantee arbitrarily. This application contains no facts or particulars in support of the allegation of fraud. A similar bald averment alleging fraud is also contained in the second application for injunction relating to bank guarantee No. 40/47. This is not a case where defendant No. 1 had at any time alleged fraud prior to the filing of injunction application. The main contract, pursuant to which the bank guarantees were issued, was not sought to be avoided by alleging fraud, nor was it at any point of time alleged that the bank guarantee was issued because any fraud had been played by the appellant. We have no manner of doubt that the bald assertion of fraud had been made solely with a view to obtain an order of injunction. In the absence of established fraud and not a mere allegation of fraud and that also having been made only in the injunction application, the Court could not, in the present case, have granted an injunction relating to the encashment of the bank guarantees. 31. It is unfortunate that the High Court did not consider it necessary to refer to various judicial pronouncements of this Court in which the principles which have to be followed while examining an application for grant of interim relief have been clearly laid down. The observation of the High Court that reference to judicial decisions will not be of much importance was clearly a method adopted by it in avoiding to follow and apply the law as laid down by this Court. Yet another serious error which was committed by the High Court, in the present case, was not to examine the terms of the bank guarantee and consider the letters of invocation which had been written by the appellant. If the High Court had taken the trouble of examining the documents on record, which had been referred to by the trial Court, in its order refusing to grant injunction, the Court would not have granted the interim injunction. We also do not find any justification for the High Court in invoking the alleged principle of unjust enrichment to the facts of the present case and then deny the appellant the right to encash the bank guarantee. If the High Court had taken the trouble to see the law on the point it would have been clear that in encashment of bank guarantee the applicability of the principle of undue enrichment has no application. 32. We are constrained to make these observations with regard to the manner in which the High Court had default with this case because this is not an isolated case where the Courts, while disobeying or not complying with the law laid down by this Court, have at time been liberal in granting injunction restraining encashment of bank guarantees. 33. It is unfortunate, that notwithstanding the authoritative pronouncements of this Court, the High Courts and the Courts subordinate thereto, still seem intent on affording to this Court innumerable opportunities for dealing with this area of law, thought by this Court to be well settled. 34. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate Courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops. 35. Before concluding we think it appropriate to mention about the conduct of the respondent-bank which has chosen not to be in this case. From the facts stated hereinabove it appears to us that the respondent bank has not shown professional efficiency, to say the least, and has acted in a partisan manner with a view to help and assist respondent No. 1. At the time when there was no restraint order from any Court, the bank was under a legal and moral obligation to honour its commitments. It, however, failed to do so. It appears that the bank deliberately dragged its feet so as to enable respondent No. 1 to secure favourable order of injunction from the Court. Such conduct of a bank is difficult to appreciate. We do not wish to say anything more but it may feel that it will be prejudicial in the event of the appellant taking action against it. | 1[ds]25. In the instant case, as has been already noticed there were two types of bank guarantees which were issued. Bank Guarantee No. 40/51 for Rs. 26,15000/was issued to ensure timely performance of the agreement by respondent No. 1. The relevant terms of this guarantee firstly makes it clear that the bank has unconditionally and irrevocably undertaken to pay to the appellant, on written demand and without demand, the amount demanded by it. Secondly, Clause II of the said guarantee clarifies that the payment shall be made without demand and on the undertaking that the appellant is to be sole Judge whether the seller has committed any breach. Consequently the right of the appellant to recover the guaranteed amount is not to be effected or suspended by reason of any dispute which can be raised or pending before the Courts tribunals or arbitrator. Thirdly the guarantor had no right to know the reasons of or to investigate the merits of the demand or to question or to challenge the demand or to know any facts affecting the demand and lastly it was not open to the bank to require the proof of the liability of respondent No. 1 to pay the amount before paying the aforesaid guaranteed amount to theinjunction of the Court ought not to be an instrument which is used in nullifying the terms of a contract, agreement or undertaking which is lawfully enforceable. In its aforesaid letter dated 24th November, 1995 respondent No. 1 had clearly admitted that entire supply had not been made. In view of this also the High Court was not justified in granting anour opinion, this decision can be of no assistance to respondent No. 1 because in Larson and Toubros case (supra) this Court found that the guarantee which had been given by the bank was to ensure only till the successful completion of the trial operations and the taking over of the plant. The documents revealed that the contractual term in this regard has been complied with and after successful completion of the trial operation, the plant had admittedly been taken over. In view of this, it was held by this Court that the terms of the bank guarantee did not permit its invocation once the trial operations have been successfully completed.No plea was taken before the Courts below, and no document has been shown to us by the respondents, which can prima facie indicate that the full amount of advance had been adjusted under Clause 13 of the main contract between the appellant and the defendant No. 1. According to the appellants, the original guarantee was for Rs. 51,70,000/but the same, after adjustment of the advance, in terms of clause 13 of the main agreement, stood reduced to Rs.This amount was still outstanding and, therefore, the bank guarantee had not come to an end and was rightly invoked. 30. Coming to the allegation of fraud, it is an admitted fact that in the plaint itself, there was no such allegation. It was initially only in the first application for the grant of injunction that in a paragraph it has been mentioned that the appellant herein had invoked the bank guarantee arbitrarily. This application contains no facts or particulars in support of the allegation of fraud. A similar bald averment alleging fraud is also contained in the second application for injunction relating to bank guarantee No. 40/47. This is not a case where defendant No. 1 had at any time alleged fraud prior to the filing of injunction application. The main contract, pursuant to which the bank guarantees were issued, was not sought to be avoided by alleging fraud, nor was it at any point of time alleged that the bank guarantee was issued because any fraud had been played by the appellant. We have no manner of doubt that the bald assertion of fraud had been made solely with a view to obtain an order of injunction. In the absence of established fraud and not a mere allegation of fraud and that also having been made only in the injunction application, the Court could not, in the present case, have granted an injunction relating to the encashment of the bank guarantees.When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate Courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops. 35. Before concluding we think it appropriate to mention about the conduct of thewhich has chosen not to be in this case. From the facts stated hereinabove it appears to us that the respondent bank has not shown professional efficiency, to say the least, and has acted in a partisan manner with a view to help and assist respondent No. 1. At the time when there was no restraint order from any Court, the bank was under a legal and moral obligation to honour its commitments. It, however, failed to do so. It appears that the bank deliberately dragged its feet so as to enable respondent No. 1 to secure favourable order of injunction from the Court. Such conduct of a bank is difficult to appreciate. We do not wish to say anything more but it may feel that it will be prejudicial in the event of the appellant taking action against it. | 1 | 6,367 | 1,043 | ### Instruction:
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whatsoever the Guarantor hereby undertakes that the Sellers shall furnish a fresh or renewed guarantee on the Purchasers pro forma for such further period as the purchasers may intimate failing which the guarantor shall pay to the purchaser a sum not exceeding Rs. 51,70,000/- (Rupees fifty one lacs seventy thousand only) or the residual amount of balance unadjusted advance left after proportionate adjustment in accordance with clause 1 above as the purchaser may demand." 29. No plea was taken before the Courts below, and no document has been shown to us by the respondents, which can prima facie indicate that the full amount of advance had been adjusted under Clause 13 of the main contract between the appellant and the defendant No. 1. According to the appellants, the original guarantee was for Rs. 51,70,000/- but the same, after adjustment of the advance, in terms of clause 13 of the main agreement, stood reduced to Rs. 33,00,000/-. This amount was still outstanding and, therefore, the bank guarantee had not come to an end and was rightly invoked. 30. Coming to the allegation of fraud, it is an admitted fact that in the plaint itself, there was no such allegation. It was initially only in the first application for the grant of injunction that in a paragraph it has been mentioned that the appellant herein had invoked the bank guarantee arbitrarily. This application contains no facts or particulars in support of the allegation of fraud. A similar bald averment alleging fraud is also contained in the second application for injunction relating to bank guarantee No. 40/47. This is not a case where defendant No. 1 had at any time alleged fraud prior to the filing of injunction application. The main contract, pursuant to which the bank guarantees were issued, was not sought to be avoided by alleging fraud, nor was it at any point of time alleged that the bank guarantee was issued because any fraud had been played by the appellant. We have no manner of doubt that the bald assertion of fraud had been made solely with a view to obtain an order of injunction. In the absence of established fraud and not a mere allegation of fraud and that also having been made only in the injunction application, the Court could not, in the present case, have granted an injunction relating to the encashment of the bank guarantees. 31. It is unfortunate that the High Court did not consider it necessary to refer to various judicial pronouncements of this Court in which the principles which have to be followed while examining an application for grant of interim relief have been clearly laid down. The observation of the High Court that reference to judicial decisions will not be of much importance was clearly a method adopted by it in avoiding to follow and apply the law as laid down by this Court. Yet another serious error which was committed by the High Court, in the present case, was not to examine the terms of the bank guarantee and consider the letters of invocation which had been written by the appellant. If the High Court had taken the trouble of examining the documents on record, which had been referred to by the trial Court, in its order refusing to grant injunction, the Court would not have granted the interim injunction. We also do not find any justification for the High Court in invoking the alleged principle of unjust enrichment to the facts of the present case and then deny the appellant the right to encash the bank guarantee. If the High Court had taken the trouble to see the law on the point it would have been clear that in encashment of bank guarantee the applicability of the principle of undue enrichment has no application. 32. We are constrained to make these observations with regard to the manner in which the High Court had default with this case because this is not an isolated case where the Courts, while disobeying or not complying with the law laid down by this Court, have at time been liberal in granting injunction restraining encashment of bank guarantees. 33. It is unfortunate, that notwithstanding the authoritative pronouncements of this Court, the High Courts and the Courts subordinate thereto, still seem intent on affording to this Court innumerable opportunities for dealing with this area of law, thought by this Court to be well settled. 34. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate Courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops. 35. Before concluding we think it appropriate to mention about the conduct of the respondent-bank which has chosen not to be in this case. From the facts stated hereinabove it appears to us that the respondent bank has not shown professional efficiency, to say the least, and has acted in a partisan manner with a view to help and assist respondent No. 1. At the time when there was no restraint order from any Court, the bank was under a legal and moral obligation to honour its commitments. It, however, failed to do so. It appears that the bank deliberately dragged its feet so as to enable respondent No. 1 to secure favourable order of injunction from the Court. Such conduct of a bank is difficult to appreciate. We do not wish to say anything more but it may feel that it will be prejudicial in the event of the appellant taking action against it.
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25. In the instant case, as has been already noticed there were two types of bank guarantees which were issued. Bank Guarantee No. 40/51 for Rs. 26,15000/was issued to ensure timely performance of the agreement by respondent No. 1. The relevant terms of this guarantee firstly makes it clear that the bank has unconditionally and irrevocably undertaken to pay to the appellant, on written demand and without demand, the amount demanded by it. Secondly, Clause II of the said guarantee clarifies that the payment shall be made without demand and on the undertaking that the appellant is to be sole Judge whether the seller has committed any breach. Consequently the right of the appellant to recover the guaranteed amount is not to be effected or suspended by reason of any dispute which can be raised or pending before the Courts tribunals or arbitrator. Thirdly the guarantor had no right to know the reasons of or to investigate the merits of the demand or to question or to challenge the demand or to know any facts affecting the demand and lastly it was not open to the bank to require the proof of the liability of respondent No. 1 to pay the amount before paying the aforesaid guaranteed amount to theinjunction of the Court ought not to be an instrument which is used in nullifying the terms of a contract, agreement or undertaking which is lawfully enforceable. In its aforesaid letter dated 24th November, 1995 respondent No. 1 had clearly admitted that entire supply had not been made. In view of this also the High Court was not justified in granting anour opinion, this decision can be of no assistance to respondent No. 1 because in Larson and Toubros case (supra) this Court found that the guarantee which had been given by the bank was to ensure only till the successful completion of the trial operations and the taking over of the plant. The documents revealed that the contractual term in this regard has been complied with and after successful completion of the trial operation, the plant had admittedly been taken over. In view of this, it was held by this Court that the terms of the bank guarantee did not permit its invocation once the trial operations have been successfully completed.No plea was taken before the Courts below, and no document has been shown to us by the respondents, which can prima facie indicate that the full amount of advance had been adjusted under Clause 13 of the main contract between the appellant and the defendant No. 1. According to the appellants, the original guarantee was for Rs. 51,70,000/but the same, after adjustment of the advance, in terms of clause 13 of the main agreement, stood reduced to Rs.This amount was still outstanding and, therefore, the bank guarantee had not come to an end and was rightly invoked. 30. Coming to the allegation of fraud, it is an admitted fact that in the plaint itself, there was no such allegation. It was initially only in the first application for the grant of injunction that in a paragraph it has been mentioned that the appellant herein had invoked the bank guarantee arbitrarily. This application contains no facts or particulars in support of the allegation of fraud. A similar bald averment alleging fraud is also contained in the second application for injunction relating to bank guarantee No. 40/47. This is not a case where defendant No. 1 had at any time alleged fraud prior to the filing of injunction application. The main contract, pursuant to which the bank guarantees were issued, was not sought to be avoided by alleging fraud, nor was it at any point of time alleged that the bank guarantee was issued because any fraud had been played by the appellant. We have no manner of doubt that the bald assertion of fraud had been made solely with a view to obtain an order of injunction. In the absence of established fraud and not a mere allegation of fraud and that also having been made only in the injunction application, the Court could not, in the present case, have granted an injunction relating to the encashment of the bank guarantees.When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate Courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate Courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops. 35. Before concluding we think it appropriate to mention about the conduct of thewhich has chosen not to be in this case. From the facts stated hereinabove it appears to us that the respondent bank has not shown professional efficiency, to say the least, and has acted in a partisan manner with a view to help and assist respondent No. 1. At the time when there was no restraint order from any Court, the bank was under a legal and moral obligation to honour its commitments. It, however, failed to do so. It appears that the bank deliberately dragged its feet so as to enable respondent No. 1 to secure favourable order of injunction from the Court. Such conduct of a bank is difficult to appreciate. We do not wish to say anything more but it may feel that it will be prejudicial in the event of the appellant taking action against it.
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H. S. YADAV Vs. SHAKUNTALA DEVI PARAKH | Notwithstanding anything to the contrary contained in this Act, a landlord and/or tenant aggrieved by any order of the Rent Controller shall have the right to appeal in the prescribed manner within the prescribed time to the Rent Control Tribunal. (2) Appeal against an order of the Rent Control Tribunal shall lie with the Supreme Court.?4. A bare perusal of Section 13 shows that from any order of the Rent Controller an appeal lies to the Rent Control Tribunal and in terms of Section 13(2), an appeal lies as a matter of right to the Supreme Court. 5. When the present appeal, filed under Section 13(2) of the Act, came up for admission, while issuing notice we had also ordered as follows:-?xxx xxx xxx Notice be given to the learned Advocate General of the State of Chhattisgarh and the learned Attorney General for India as to whether the provisions contained in Section 13(2) of the Chhattisgarh Rent Control Act, 2011 providing for an appeal to the Supreme Court of India against the order of the Rent Control Tribunal, Chhattisgarh would be within the legislative competence of the State Legislature. xxx xxx xxx?6. Pursuant to the notice, learned Attorney General has appeared and assisted the Court. 7. At the outset, we would like to point out that the Tribunal has been constituted in exercise of the powers vested in the State Legislature under Article 323B of the Constitution of India which deals with tribunal for other matters. Sub-clause (h) of Clause (2) of the said Article which empowers the appropriate legislature to constitute a tribunal to deal with the issues relating to rent and its regulations read as follows:-?323B. Tribunals for other matters.- (1) xxx xxx xxx (2) The matters referred to in clause (1) are the following, namely:- xxx xxx xxx (h) rent, its regulation and control and tenancy issues including the rights, title and interest of landlords and tenants;?8. It is not disputed before us that the State has the power to constitute the Tribunal. The only issue is whether in terms of Section 13(2) of the Act, the State Legislature could provide an appeal as a matter of right from the order of the Tribunal to the Supreme Court. 9. Article 246 of the Constitution specifically provides that Parliament has exclusive powers to make laws in respect of matters enumerated in List I (Union List) of the Seventh Schedule. Likewise, the State has exclusive powers to make laws in respect of matters falling in List II (State List) of the Seventh Schedule. As far as the Concurrent List, i.e. List III is concerned, both the Union and the State have the power to enact laws but if the field is occupied by any law enacted by Parliament then the State cannot legislate on the same issue. 10. Entry 77 of List I of the Seventh Schedule reads as under:- ?77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.?Entry 77 gives power to the Union in respect of jurisdiction and the powers of the Supreme Court. This power cannot be exercised by the State Legislature.11. It would also be apposite to refer to Entry 65 of List II of the Seventh Schedule, which reads as follows:-?65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.?A bare reading of Entry 65 clearly indicates that the State Legislature has no power to enact any legislation relating to jurisdiction and power of the Supreme Court. This power is specifically excluded.12. Entry 46 of List III of the Seventh Schedule is also relevant. This reads as follows:-?46. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list.?Even Entry 46 makes it clear that as far as the jurisdictional powers of the Supreme Court are concerned, they cannot be exercised under the Concurrent List. Therefore, the powers with regard to jurisdiction and power of the Supreme Court vest with the Union and Parliament alone can enact a legislation in this regard. The power of the Supreme Court under Article 136 is always there. However, the State cannot enact a legislation providing an appeal directly to the Supreme Court. That would amount to entrenching upon the jurisdiction of the Union, which the State Legislature does not have.13. We are constrained to observe that the men who drafted the Act did not even consider the hierarchy of Courts. As pointed above, the Rent Control Tribunal is headed by a retired Judge of the High Court or District Judge in the Super Time Scale or above. What was the rationale of making such an order appealable directly to the Supreme Court? We see no reason why the supervisory jurisdiction of the High Court should be excluded. 14. We, therefore, have no doubt in our mind that Section 13(2) of the Act, in so far as it provides an appeal directly to the Supreme Court, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the State Legislature. Section 13(2) of the Act is accordingly struck down. 15. While dealing with the issue, we may make reference to the fact that the Rent Control Tribunal is a tribunal constituted under Article 323B of the Constitution. 16. In L. Chandrakumar vs. Union of India (1993) 4 SCC 119 , this Court clearly held that tribunals constituted under Articles 323A and 323B of the Constitution are subject to the writ jurisdiction of the High Courts. In view of the law laid down in L. Chandrakumar?s case (supra), the High Court can exercise its supervisory jurisdiction under Article 227 of the Constitution against the orders of the Rent Control Tribunal. 17. In view of the above, we hold that an appeal under Section 13 (2) of the Act directly to the Supreme Court is not maintainable. | 0[ds]A bare reading of Entry 65 clearly indicates that the State Legislature has no power to enact any legislation relating to jurisdiction and power of the Supreme Court. This power is specificallyEntry 46 makes it clear that as far as the jurisdictional powers of the Supreme Court are concerned, they cannot be exercised under the Concurrent List. Therefore, the powers with regard to jurisdiction and power of the Supreme Court vest with the Union and Parliament alone can enact a legislation in this regard. The power of the Supreme Court under Article 136 is always there. However, the State cannot enact a legislation providing an appeal directly to the Supreme Court. That would amount to entrenching upon the jurisdiction of the Union, which the State Legislature does not have.We are constrained to observe that the men who drafted the Act did not even consider the hierarchy of Courts. As pointed above, the Rent Control Tribunal is headed by a retired Judge of the High Court or District Judge in the Super Time Scale or above. What was the rationale of making such an order appealable directly to the Supreme Court? We see no reason why the supervisory jurisdiction of the High Court should be excluded.We, therefore, have no doubt in our mind that Section 13(2) of the Act, in so far as it provides an appeal directly to the Supreme Court, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the State Legislature. Section 13(2) of the Act is accordingly struck down.While dealing with the issue, we may make reference to the fact that the Rent Control Tribunal is a tribunal constituted under Article 323B of the Constitution.In L. Chandrakumar vs. Union of India(1993) 4 SCC 119 , this Court clearly held that tribunals constituted under Articles 323A and 323B of the Constitution are subject to the writ jurisdiction of the High Courts. In view of the law laid down in L. Chandrakumar?s case (supra), the High Court can exercise its supervisory jurisdiction under Article 227 of the Constitution against the orders of the Rent Control Tribunal.In view of the above, we hold that an appeal under Section 13 (2) of the Act directly to the Supreme Court is not maintainable. | 0 | 1,763 | 422 | ### 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:
Notwithstanding anything to the contrary contained in this Act, a landlord and/or tenant aggrieved by any order of the Rent Controller shall have the right to appeal in the prescribed manner within the prescribed time to the Rent Control Tribunal. (2) Appeal against an order of the Rent Control Tribunal shall lie with the Supreme Court.?4. A bare perusal of Section 13 shows that from any order of the Rent Controller an appeal lies to the Rent Control Tribunal and in terms of Section 13(2), an appeal lies as a matter of right to the Supreme Court. 5. When the present appeal, filed under Section 13(2) of the Act, came up for admission, while issuing notice we had also ordered as follows:-?xxx xxx xxx Notice be given to the learned Advocate General of the State of Chhattisgarh and the learned Attorney General for India as to whether the provisions contained in Section 13(2) of the Chhattisgarh Rent Control Act, 2011 providing for an appeal to the Supreme Court of India against the order of the Rent Control Tribunal, Chhattisgarh would be within the legislative competence of the State Legislature. xxx xxx xxx?6. Pursuant to the notice, learned Attorney General has appeared and assisted the Court. 7. At the outset, we would like to point out that the Tribunal has been constituted in exercise of the powers vested in the State Legislature under Article 323B of the Constitution of India which deals with tribunal for other matters. Sub-clause (h) of Clause (2) of the said Article which empowers the appropriate legislature to constitute a tribunal to deal with the issues relating to rent and its regulations read as follows:-?323B. Tribunals for other matters.- (1) xxx xxx xxx (2) The matters referred to in clause (1) are the following, namely:- xxx xxx xxx (h) rent, its regulation and control and tenancy issues including the rights, title and interest of landlords and tenants;?8. It is not disputed before us that the State has the power to constitute the Tribunal. The only issue is whether in terms of Section 13(2) of the Act, the State Legislature could provide an appeal as a matter of right from the order of the Tribunal to the Supreme Court. 9. Article 246 of the Constitution specifically provides that Parliament has exclusive powers to make laws in respect of matters enumerated in List I (Union List) of the Seventh Schedule. Likewise, the State has exclusive powers to make laws in respect of matters falling in List II (State List) of the Seventh Schedule. As far as the Concurrent List, i.e. List III is concerned, both the Union and the State have the power to enact laws but if the field is occupied by any law enacted by Parliament then the State cannot legislate on the same issue. 10. Entry 77 of List I of the Seventh Schedule reads as under:- ?77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.?Entry 77 gives power to the Union in respect of jurisdiction and the powers of the Supreme Court. This power cannot be exercised by the State Legislature.11. It would also be apposite to refer to Entry 65 of List II of the Seventh Schedule, which reads as follows:-?65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.?A bare reading of Entry 65 clearly indicates that the State Legislature has no power to enact any legislation relating to jurisdiction and power of the Supreme Court. This power is specifically excluded.12. Entry 46 of List III of the Seventh Schedule is also relevant. This reads as follows:-?46. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this list.?Even Entry 46 makes it clear that as far as the jurisdictional powers of the Supreme Court are concerned, they cannot be exercised under the Concurrent List. Therefore, the powers with regard to jurisdiction and power of the Supreme Court vest with the Union and Parliament alone can enact a legislation in this regard. The power of the Supreme Court under Article 136 is always there. However, the State cannot enact a legislation providing an appeal directly to the Supreme Court. That would amount to entrenching upon the jurisdiction of the Union, which the State Legislature does not have.13. We are constrained to observe that the men who drafted the Act did not even consider the hierarchy of Courts. As pointed above, the Rent Control Tribunal is headed by a retired Judge of the High Court or District Judge in the Super Time Scale or above. What was the rationale of making such an order appealable directly to the Supreme Court? We see no reason why the supervisory jurisdiction of the High Court should be excluded. 14. We, therefore, have no doubt in our mind that Section 13(2) of the Act, in so far as it provides an appeal directly to the Supreme Court, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the State Legislature. Section 13(2) of the Act is accordingly struck down. 15. While dealing with the issue, we may make reference to the fact that the Rent Control Tribunal is a tribunal constituted under Article 323B of the Constitution. 16. In L. Chandrakumar vs. Union of India (1993) 4 SCC 119 , this Court clearly held that tribunals constituted under Articles 323A and 323B of the Constitution are subject to the writ jurisdiction of the High Courts. In view of the law laid down in L. Chandrakumar?s case (supra), the High Court can exercise its supervisory jurisdiction under Article 227 of the Constitution against the orders of the Rent Control Tribunal. 17. In view of the above, we hold that an appeal under Section 13 (2) of the Act directly to the Supreme Court is not maintainable.
### Response:
0
### Explanation:
A bare reading of Entry 65 clearly indicates that the State Legislature has no power to enact any legislation relating to jurisdiction and power of the Supreme Court. This power is specificallyEntry 46 makes it clear that as far as the jurisdictional powers of the Supreme Court are concerned, they cannot be exercised under the Concurrent List. Therefore, the powers with regard to jurisdiction and power of the Supreme Court vest with the Union and Parliament alone can enact a legislation in this regard. The power of the Supreme Court under Article 136 is always there. However, the State cannot enact a legislation providing an appeal directly to the Supreme Court. That would amount to entrenching upon the jurisdiction of the Union, which the State Legislature does not have.We are constrained to observe that the men who drafted the Act did not even consider the hierarchy of Courts. As pointed above, the Rent Control Tribunal is headed by a retired Judge of the High Court or District Judge in the Super Time Scale or above. What was the rationale of making such an order appealable directly to the Supreme Court? We see no reason why the supervisory jurisdiction of the High Court should be excluded.We, therefore, have no doubt in our mind that Section 13(2) of the Act, in so far as it provides an appeal directly to the Supreme Court, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the State Legislature. Section 13(2) of the Act is accordingly struck down.While dealing with the issue, we may make reference to the fact that the Rent Control Tribunal is a tribunal constituted under Article 323B of the Constitution.In L. Chandrakumar vs. Union of India(1993) 4 SCC 119 , this Court clearly held that tribunals constituted under Articles 323A and 323B of the Constitution are subject to the writ jurisdiction of the High Courts. In view of the law laid down in L. Chandrakumar?s case (supra), the High Court can exercise its supervisory jurisdiction under Article 227 of the Constitution against the orders of the Rent Control Tribunal.In view of the above, we hold that an appeal under Section 13 (2) of the Act directly to the Supreme Court is not maintainable.
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Paramount Digital Color Lab and Ors Vs. Agfa India Pvt. Ltd. and Ors | is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2(1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the Appellants wanted to use the machine in question for purposes other than "self-employment".Therefore, the point to be considered is whether the Appellants have purchased the machine in question for "commercial purpose" or exclusively for the purposes of earning their livelihood by means of "self-employment". There cannot be any dispute that the initial burden is on the Appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that Respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the Appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion.14. The word "purchaser" means and includes members of his family also. The machine in question was purchased by two partners; both were unemployed graduates. They started a firm namely M/s. Paramount Digital Color Lab at Varanasi, U.P. afresh. The Appellants have specified that they are unemployed graduates; they planned to start a business of photography for self-employment and for their livelihood, for which they contacted Respondent Nos. 2 & 4, which means that they had not planned to start their business of photography till they planned to purchase the machine in question. Having felt the need of the machine in question, they contacted Respondent No. 1 and enquired about the salient features and performance of the "Agfa Minilab D-Lab. 1 All rounder" machine. Being impressed by the advice and suggestion made by Respondent Nos. 2 & 4, Appellants borrowed a loan from the Union Bank of India on 12.07.2004 and placed an order for the purchase of the said machine and paid by draft an amount of Rs. 62,00,000/- towards the cost of the machine along with freight and collateral charges. It is the case of the Appellants that they purchased the machine with the fond hope and belief that it would give good results and that they would earn a handsome amount by which their basic needs of livelihood would be fulfilled and that the family of the Appellants will survive smoothly. They might have started the business with the help of one operator and helper. Of course, in Paragraph 14 of the complaint, the Appellants have used the words "Operators and Helpers". This portion of the complaint has been highlighted by the National Commission to conclude that the Appellants were using the machine with the help of third parties for commercial purposes inasmuch as they themselves were not using the machine personally. Such averment by the Appellants in the complaint appears to be an exaggerated version with a view to get more compensation. One such stray sentence will not tilt the balance against the Appellants. The material needs to be seen in its entirety and not in isolation. Since there is nothing on record to show that they wanted the machine to be installed for a commercial purpose and not exclusively for the purposes of earning their livelihood by means of self-employment, the National Commission was not justified in concluding that the Appellants have utilised the services of an operator or a helper to run a commercial venture. One machine does not need many operators or helpers to complete the work entrusted. Since the Appellants were two partners, they must have been doing the work on their own, of course, may be with the aid of a helper or an operator. The machine would not have been used in a large-scale profit-making activity but, on the contrary, the Appellants purchased the machine for their own utility, personal handling and for their small venture which they had embarked upon to make a livelihood. The same is distinct from large-scale manufacturing or processing activity carried on for huge profits. There is no close nexus between the transaction of purchase of the machine and the alleged large-scale activity carried on for earning profit. Since the Appellants had got no employment and they were unemployed graduates, that too without finances, it is but natural for them to raise a loan to start the business of photography on a small scale for earning their livelihood.15. The material discloses that Respondent No. 1 company was dissolved in the year 2005. Prior to this dissolution, Respondent No. 2 was the Managing Director of Respondent No. 1 and Respondent No. 4 was the General Manager of Respondent No. 1. The Respondent Nos. 2 and 4 collectively talked with the Appellants and finalised the agreement along with the assurance that the machine is up to the marked standard and that repairs, if any, would be rectified free of cost, apart from other things assured. Respondent No. 3 is the subsequent company which has taken over from Respondent No. 1 in the year 2005. The said company also did not come to the aid of the Appellants either by replacing the machine or by rectifying the major defects, consequent upon which the Appellants have suffered huge losses. Anybody can visualise the loss sustained by the Appellants inasmuch as they had obtained a loan with the promise to pay interest to Respondent No. 5 bank for purchasing the machine. Therefore, Respondent Nos. 2, 3 and 4 are collectively liable to make good the loss of the Appellants. | 1[ds]9. Heard learned Counsel for the Appellants and perused the records. It is relevant to note that no relief has been claimed as against Respondent No. 5. Having gone through the judgment of the National Commission, it is clear that though a number of points arose for consideration, it did not choose to decide the same for remanding the matter, since it felt that the complaint itself was not maintainable and that the matter has been pending for long. The State Commission not only held that the complaint was maintainable, but also proceeded on merits and held in favour of the Appellants10. The National Commission on evaluation of the material on record and after hearing the parties concluded that the complainants are not "consumers" as envisaged Under Section 2(1)(d) of the Consumer Protection Act and hence the Act is not applicableIf both these provisions are read together, it leads to the conclusion that if a person purchased the goods for consideration not for any commercial purpose, but exclusively for the purposes of earning his livelihood by means of "self-employment", such purchaser will come within the definition of "consumer". If a person purchases the goods for a "commercial purpose" and not for the purposes of earning his livelihood by means of "self-employment", such purchaser will not come within the definition of "consumer". It is therefore clear, that despite "commercial activity", whether a person would fall within the definition of "consumer" or not would be a question of fact in every case. Such question of fact ought to be decided in the facts and circumstances of each caseIn the matter on hand, the quality of ultimate production by the user of the machine would depend upon the skill of the person who uses the machine. In case of exigencies, if a person trains another person to operate the machine so as to produce the final product based on skill and effort in the matter of photography and development, the same cannot take such person out of the definition of "consumer"13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that caseUltimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2(1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the Appellants wanted to use the machine in question for purposes other than "self-employment"There cannot be any dispute that the initial burden is on the Appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that Respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the Appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion14. The word "purchaser" means and includes members of his family also. The machine in question was purchased by two partners; both were unemployed graduates. They started a firm namely M/s. Paramount Digital Color Lab at Varanasi, U.P. afresh. The Appellants have specified that they are unemployed graduates; they planned to start a business of photography for self-employment and for their livelihood, for which they contacted Respondent Nos. 2 & 4, which means that they had not planned to start their business of photography till they planned to purchase the machine in question. Having felt the need of the machine in question, they contacted Respondent No. 1 and enquired about the salient features and performance of the "Agfa Minilab D-Lab. 1 All rounder" machine. Being impressed by the advice and suggestion made by Respondent Nos. 2 & 4, Appellants borrowed a loan from the Union Bank of India on 12.07.2004 and placed an order for the purchase of the said machine and paid by draft an amount of Rs. 62,00,000/- towards the cost of the machine along with freight and collateral charges. It is the case of the Appellants that they purchased the machine with the fond hope and belief that it would give good results and that they would earn a handsome amount by which their basic needs of livelihood would be fulfilled and that the family of the Appellants will survive smoothly. They might have started the business with the help of one operator and helper. Of course, in Paragraph 14 of the complaint, the Appellants have used the words "Operators and Helpers". This portion of the complaint has been highlighted by the National Commission to conclude that the Appellants were using the machine with the help of third parties for commercial purposes inasmuch as they themselves were not using the machine personally. Such averment by the Appellants in the complaint appears to be an exaggerated version with a view to get more compensation. One such stray sentence will not tilt the balance against the Appellants. The material needs to be seen in its entirety and not in isolation. Since there is nothing on record to show that they wanted the machine to be installed for a commercial purpose and not exclusively for the purposes of earning their livelihood by means of self-employment, the National Commission was not justified in concluding that the Appellants have utilised the services of an operator or a helper to run a commercial venture. One machine does not need many operators or helpers to complete the work entrusted. Since the Appellants were two partners, they must have been doing the work on their own, of course, may be with the aid of a helper or an operator. The machine would not have been used in a large-scale profit-making activity but, on the contrary, the Appellants purchased the machine for their own utility, personal handling and for their small venture which they had embarked upon to make a livelihood. The same is distinct from large-scale manufacturing or processing activity carried on for huge profits. There is no close nexus between the transaction of purchase of the machine and the alleged large-scale activity carried on for earning profit. Since the Appellants had got no employment and they were unemployed graduates, that too without finances, it is but natural for them to raise a loan to start the business of photography on a small scale for earning their livelihood15. The material discloses that Respondent No. 1 company was dissolved in the year 2005. Prior to this dissolution, Respondent No. 2 was the Managing Director of Respondent No. 1 and Respondent No. 4 was the General Manager of Respondent No. 1. The Respondent Nos. 2 and 4 collectively talked with the Appellants and finalised the agreement along with the assurance that the machine is up to the marked standard and that repairs, if any, would be rectified free of cost, apart from other things assured. Respondent No. 3 is the subsequent company which has taken over from Respondent No. 1 in the year 2005. The said company also did not come to the aid of the Appellants either by replacing the machine or by rectifying the major defects, consequent upon which the Appellants have suffered huge losses. Anybody can visualise the loss sustained by the Appellants inasmuch as they had obtained a loan with the promise to pay interest to Respondent No. 5 bank for purchasing the machine. Therefore, Respondent Nos. 2, 3 and 4 are collectively liable to make good the loss of the Appellants. | 1 | 3,415 | 1,483 | ### 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:
is required to handle the machine, is a question of fact and necessity? Ultimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2(1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the Appellants wanted to use the machine in question for purposes other than "self-employment".Therefore, the point to be considered is whether the Appellants have purchased the machine in question for "commercial purpose" or exclusively for the purposes of earning their livelihood by means of "self-employment". There cannot be any dispute that the initial burden is on the Appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that Respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the Appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion.14. The word "purchaser" means and includes members of his family also. The machine in question was purchased by two partners; both were unemployed graduates. They started a firm namely M/s. Paramount Digital Color Lab at Varanasi, U.P. afresh. The Appellants have specified that they are unemployed graduates; they planned to start a business of photography for self-employment and for their livelihood, for which they contacted Respondent Nos. 2 & 4, which means that they had not planned to start their business of photography till they planned to purchase the machine in question. Having felt the need of the machine in question, they contacted Respondent No. 1 and enquired about the salient features and performance of the "Agfa Minilab D-Lab. 1 All rounder" machine. Being impressed by the advice and suggestion made by Respondent Nos. 2 & 4, Appellants borrowed a loan from the Union Bank of India on 12.07.2004 and placed an order for the purchase of the said machine and paid by draft an amount of Rs. 62,00,000/- towards the cost of the machine along with freight and collateral charges. It is the case of the Appellants that they purchased the machine with the fond hope and belief that it would give good results and that they would earn a handsome amount by which their basic needs of livelihood would be fulfilled and that the family of the Appellants will survive smoothly. They might have started the business with the help of one operator and helper. Of course, in Paragraph 14 of the complaint, the Appellants have used the words "Operators and Helpers". This portion of the complaint has been highlighted by the National Commission to conclude that the Appellants were using the machine with the help of third parties for commercial purposes inasmuch as they themselves were not using the machine personally. Such averment by the Appellants in the complaint appears to be an exaggerated version with a view to get more compensation. One such stray sentence will not tilt the balance against the Appellants. The material needs to be seen in its entirety and not in isolation. Since there is nothing on record to show that they wanted the machine to be installed for a commercial purpose and not exclusively for the purposes of earning their livelihood by means of self-employment, the National Commission was not justified in concluding that the Appellants have utilised the services of an operator or a helper to run a commercial venture. One machine does not need many operators or helpers to complete the work entrusted. Since the Appellants were two partners, they must have been doing the work on their own, of course, may be with the aid of a helper or an operator. The machine would not have been used in a large-scale profit-making activity but, on the contrary, the Appellants purchased the machine for their own utility, personal handling and for their small venture which they had embarked upon to make a livelihood. The same is distinct from large-scale manufacturing or processing activity carried on for huge profits. There is no close nexus between the transaction of purchase of the machine and the alleged large-scale activity carried on for earning profit. Since the Appellants had got no employment and they were unemployed graduates, that too without finances, it is but natural for them to raise a loan to start the business of photography on a small scale for earning their livelihood.15. The material discloses that Respondent No. 1 company was dissolved in the year 2005. Prior to this dissolution, Respondent No. 2 was the Managing Director of Respondent No. 1 and Respondent No. 4 was the General Manager of Respondent No. 1. The Respondent Nos. 2 and 4 collectively talked with the Appellants and finalised the agreement along with the assurance that the machine is up to the marked standard and that repairs, if any, would be rectified free of cost, apart from other things assured. Respondent No. 3 is the subsequent company which has taken over from Respondent No. 1 in the year 2005. The said company also did not come to the aid of the Appellants either by replacing the machine or by rectifying the major defects, consequent upon which the Appellants have suffered huge losses. Anybody can visualise the loss sustained by the Appellants inasmuch as they had obtained a loan with the promise to pay interest to Respondent No. 5 bank for purchasing the machine. Therefore, Respondent Nos. 2, 3 and 4 are collectively liable to make good the loss of the Appellants.
### Response:
1
### Explanation:
product based on skill and effort in the matter of photography and development, the same cannot take such person out of the definition of "consumer"13. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstance of that caseUltimately, if it is purely for a "commercial purpose" and not for "self-employment", the complainant may not get the benefit of the Explanation to Section 2(1)(d) of the Act. The buyers of the goods or commodities for "self-consumption" in economic activities in which they are engaged would be "consumers" as defined in the Act. Furthermore, there is nothing on record to show that the Appellants wanted to use the machine in question for purposes other than "self-employment"There cannot be any dispute that the initial burden is on the Appellants to prove that they fall within the definition of "consumer". It is pertinent to mention that Respondent No. 4, who is a contesting party, did not choose to file a counter affidavit before the State Commission. In other words, he did not deny any of the claims made by the Appellants. None of the parties have led their evidence. Based on the material on record before the State Commission, it proceeded to decide on merits. As the litigation is being fought since 2006 in different Forums, we do not wish to remand the matter, particularly, when there is sufficient material available on record for arriving at the conclusion14. The word "purchaser" means and includes members of his family also. The machine in question was purchased by two partners; both were unemployed graduates. They started a firm namely M/s. Paramount Digital Color Lab at Varanasi, U.P. afresh. The Appellants have specified that they are unemployed graduates; they planned to start a business of photography for self-employment and for their livelihood, for which they contacted Respondent Nos. 2 & 4, which means that they had not planned to start their business of photography till they planned to purchase the machine in question. Having felt the need of the machine in question, they contacted Respondent No. 1 and enquired about the salient features and performance of the "Agfa Minilab D-Lab. 1 All rounder" machine. Being impressed by the advice and suggestion made by Respondent Nos. 2 & 4, Appellants borrowed a loan from the Union Bank of India on 12.07.2004 and placed an order for the purchase of the said machine and paid by draft an amount of Rs. 62,00,000/- towards the cost of the machine along with freight and collateral charges. It is the case of the Appellants that they purchased the machine with the fond hope and belief that it would give good results and that they would earn a handsome amount by which their basic needs of livelihood would be fulfilled and that the family of the Appellants will survive smoothly. They might have started the business with the help of one operator and helper. Of course, in Paragraph 14 of the complaint, the Appellants have used the words "Operators and Helpers". This portion of the complaint has been highlighted by the National Commission to conclude that the Appellants were using the machine with the help of third parties for commercial purposes inasmuch as they themselves were not using the machine personally. Such averment by the Appellants in the complaint appears to be an exaggerated version with a view to get more compensation. One such stray sentence will not tilt the balance against the Appellants. The material needs to be seen in its entirety and not in isolation. Since there is nothing on record to show that they wanted the machine to be installed for a commercial purpose and not exclusively for the purposes of earning their livelihood by means of self-employment, the National Commission was not justified in concluding that the Appellants have utilised the services of an operator or a helper to run a commercial venture. One machine does not need many operators or helpers to complete the work entrusted. Since the Appellants were two partners, they must have been doing the work on their own, of course, may be with the aid of a helper or an operator. The machine would not have been used in a large-scale profit-making activity but, on the contrary, the Appellants purchased the machine for their own utility, personal handling and for their small venture which they had embarked upon to make a livelihood. The same is distinct from large-scale manufacturing or processing activity carried on for huge profits. There is no close nexus between the transaction of purchase of the machine and the alleged large-scale activity carried on for earning profit. Since the Appellants had got no employment and they were unemployed graduates, that too without finances, it is but natural for them to raise a loan to start the business of photography on a small scale for earning their livelihood15. The material discloses that Respondent No. 1 company was dissolved in the year 2005. Prior to this dissolution, Respondent No. 2 was the Managing Director of Respondent No. 1 and Respondent No. 4 was the General Manager of Respondent No. 1. The Respondent Nos. 2 and 4 collectively talked with the Appellants and finalised the agreement along with the assurance that the machine is up to the marked standard and that repairs, if any, would be rectified free of cost, apart from other things assured. Respondent No. 3 is the subsequent company which has taken over from Respondent No. 1 in the year 2005. The said company also did not come to the aid of the Appellants either by replacing the machine or by rectifying the major defects, consequent upon which the Appellants have suffered huge losses. Anybody can visualise the loss sustained by the Appellants inasmuch as they had obtained a loan with the promise to pay interest to Respondent No. 5 bank for purchasing the machine. Therefore, Respondent Nos. 2, 3 and 4 are collectively liable to make good the loss of the Appellants.
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Commissioner Of Sales Tax, U.P Vs. Bijli Cotton Mills, Hathras | In Chatturam Horiram Ltd.s case, 1955-2 SCR 290 : ((S) AIR 1955 SC 619 ) a previous assessment to income-tax of the assess fell through because the Indian Finance Act of 1939 was not in force in Chota Nagpur area where the assessee was carrying on business during the relevant assessment year. Thereafter Bihar Regulation IV of 1942 was promulgated by the Governor of Bihar with the assent of the Governor - General and thereby the Indian Finance Act of 1939 was brought into force in Chota Nagpur retrospectively as from March 30, 1939. On February 8, 1944, the Income- tax Officer issued a fresh notice under S. 34 of the Indian Income-tax Act, 1922, which resulted in the assessment of the appellant to income-tax, and the question which fell to be determined was whether the notice was properly issued under S. 34 of the Act. It was argued that when the High Court answered the earlier reference which negatived the claim of the Revenue to assess the assessee, Bihar Regulation IV of 1942 had in fact been enacted, and if the High Court had applied that Regulation the result would have been different, and in meeting that argument the Court observed that it was doubtful if the High Court had jurisdiction to take into consideration the subsequent legislation for answering a question other than the one which was actually raised. The doubt expressed was therefore in respect of the power of the Court to decide a question other than the question which was actually referred and not in respect of the power and indeed the duty of the High Court to apply to the question referred the law enacted with retrospective operation.8. In support of his contention Mr. Kapur relied upon the observation of Desai, C. J., in M/s. Rampur Distillery Chemical Works Ltd. v. Commissioner of Income Tax U. P., I. T. Ref. No. 362 of 1958 D/- 17-1-1964 (All) to the following effect:"The argument was that though the High Court has to answer the question referred to it with reference to the law in force in 1957 (when the Tribunal disposed of the appeal) what that law was has to be discovered today with reference to the law existing today. What was the law in 1957 on the basis of which the Tribunal disposed of the appeal has certainly to be decided by this Court today but what has to be decided is the law existing in 1957 and not deemed to exist in 1957 by virtue of an amendment in the law made in 1962.But in that case, in the view of the High Court the amendment made by the amending statute of 1962 which came into force after the reference was made by the Income-tax Tribunal had no retrospective operation, and the question referred by the Tribunal had to be answered by the High Court in the light of the relevant law applicable at the date of the transaction. The observation relied upon has to be read in the context of the finding of the High Court as to the character of the amending legislation. The observation therefore does not assist the contention that even in cases where the relevant statute has been amended with retroactive operation, so as to apply to the transaction which forms the subject-matter of the reference, the High Court or this Court is bound in recording its opinion on the question referred to ignore the amended law. If what counsel contends is true, the answer given by the High Court or by this Court would have no value whatever in cases where by retroactive amendment of the law, the old law has been superseded and is substituted by a new statutory provision. Undoubtedly the Tribunal called upon to decide a taxing dispute must apply the relevant law applicable to a particular transaction to which the problem relates, and what law normally is the law applicable as on the date on which the transaction in dispute has taken place. If the law which the tribunal seeks to apply to the dispute is amended, so as to make the law applicable to the transaction in dispute, it would be bound to decide the question in the light of the law so amended. Similarly when the question has been referred to the High Court and in the meanwhile the law has been amended with retrospective operation, it would be the duty of the High Court to apply the law so amended if it applies. By taking notice of the law which has been substituted for the original provision, the High Court is giving effect to legislative intent and does no more than what must be deemed to be necessarily implicit in the question referred by the Tribunal, provided the question is couched in terms of sufficient amplitude to cover an enquiry into the question in the light of the amended law, and the enquiry does not necessitate investigation of fresh facts. If the question is not so couched as to invite the High Court to decide the question in the light of the law as amended or if it necessitates investigation of facts which have not been investigated, the High Court may refuse to answer the question. Application of the relevant law to a problem raised by the reference before the High Court is not normally excluded merely because at the date when the Tribunal decided the question the relevant law was not or could not be brought to its notice. There is nothing so peculiar in the nature of a reference under the Indian Income-tax Act or the Sales Tax Acts that in deciding it the High Court is restricted to the application of the law which has been superseded by legislation since the date when the reference was made by the Tax Tribunal and is obliged to refuse to apply the law which by legislative direction has to be applied to a particular transaction which is the subject-matter of the reference. | 1[ds]In our view there is no substance in this contention. The question referred to the High Court posed a problem as to the liability of the respondent company to be assessed for the assessment year 1948-49. Two rival views were propounded before the Judge (Revisions) Sales Tax. One was that rates applicable to the fictional turnover for the year of assessment were those prevalent in the year 1948-49 and for the purpose of assessment they had to be applied to the turnover in the same proportion in which they would have applied if the option had not been exercised. That was the contention of the sales Tax Department. The contention of the assessee was that having opted, for the turnover of the previous year, the rates applicable to the turnover would be crystallised on the first day of the year of assessment and any modification since the commencement of the year in the rates would be inapplicable. This Court in the Modi Sugar Mills Ltd.s case, 1961-2 SCR 189 : (AIR 1961 SC 1047 ) accepted the contention raised by the assessee. But for the amendment, the question which was posed by the Judge (Revisions) Sales Tax would have to be answered as it was answered by the High Court. The Legislature has, however, amended the Act and has declared that notwithstanding the option exercised by the assesssee the tax would have to be computed in the light of the rates prevailing in 1948-49 as if they were projected upon the turnover of the previous year. The Legislature has expressly stated that this rule will prevail as if it was in force during the assessment year and all assessments will be made in the light of this amended rule. In answering the question which was submitted by the Judge (Revisions) Sales Tax, therefore, the law enacted by the Legislature is the law found incorporated in S. 31 by Amending Act III of 1963. This Court in giving its opinion on the question in the light of the amending Act is seeking to apply a legislative provision which was, by express enactment, in force at the time when the liability arose, for S. 31 enacted by Act III of 1963 is to be deemed to have been in operation at all material times in supersession of the previous rule declared by this Court. This Court is, therefore, not seeking to apply any law to the question posed before the High Court which was not in force on the date of the transaction which is the subject-matter of theobservation relied upon has to be read in the context of the finding of the High Court as to the character of the amending legislation. The observation therefore does not assist the contention that even in cases where the relevant statute has been amended with retroactive operation, so as to apply to the transaction which forms the subject-matter of the reference, the High Court or this Court is bound in recording its opinion on the question referred to ignore the amended law. If what counsel contends is true, the answer given by the High Court or by this Court would have no value whatever in cases where by retroactive amendment of the law, the old law has been superseded and is substituted by a new statutory provision. Undoubtedly the Tribunal called upon to decide a taxing dispute must apply the relevant law applicable to a particular transaction to which the problem relates, and what law normally is the law applicable as on the date on which the transaction in dispute has taken place. If the law which the tribunal seeks to apply to the dispute is amended, so as to make the law applicable to the transaction in dispute, it would be bound to decide the question in the light of the law so amended. Similarly when the question has been referred to the High Court and in the meanwhile the law has been amended with retrospective operation, it would be the duty of the High Court to apply the law so amended if it applies. By taking notice of the law which has been substituted for the original provision, the High Court is giving effect to legislative intent and does no more than what must be deemed to be necessarily implicit in the question referred by the Tribunal, provided the question is couched in terms of sufficient amplitude to cover an enquiry into the question in the light of the amended law, and the enquiry does not necessitate investigation of fresh facts. If the question is not so couched as to invite the High Court to decide the question in the light of the law as amended or if it necessitates investigation of facts which have not been investigated, the High Court may refuse to answer the question. Application of the relevant law to a problem raised by the reference before the High Court is not normally excluded merely because at the date when the Tribunal decided the question the relevant law was not or could not be brought to its notice. There is nothing so peculiar in the nature of a reference under the Indian Income-tax Act or the Sales Tax Acts that in deciding it the High Court is restricted to the application of the law which has been superseded by legislation since the date when the reference was made by the Tax Tribunal and is obliged to refuse to apply the law which by legislative direction has to be applied to a particular transaction which is the subject-matter of the reference. | 1 | 3,276 | 989 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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In Chatturam Horiram Ltd.s case, 1955-2 SCR 290 : ((S) AIR 1955 SC 619 ) a previous assessment to income-tax of the assess fell through because the Indian Finance Act of 1939 was not in force in Chota Nagpur area where the assessee was carrying on business during the relevant assessment year. Thereafter Bihar Regulation IV of 1942 was promulgated by the Governor of Bihar with the assent of the Governor - General and thereby the Indian Finance Act of 1939 was brought into force in Chota Nagpur retrospectively as from March 30, 1939. On February 8, 1944, the Income- tax Officer issued a fresh notice under S. 34 of the Indian Income-tax Act, 1922, which resulted in the assessment of the appellant to income-tax, and the question which fell to be determined was whether the notice was properly issued under S. 34 of the Act. It was argued that when the High Court answered the earlier reference which negatived the claim of the Revenue to assess the assessee, Bihar Regulation IV of 1942 had in fact been enacted, and if the High Court had applied that Regulation the result would have been different, and in meeting that argument the Court observed that it was doubtful if the High Court had jurisdiction to take into consideration the subsequent legislation for answering a question other than the one which was actually raised. The doubt expressed was therefore in respect of the power of the Court to decide a question other than the question which was actually referred and not in respect of the power and indeed the duty of the High Court to apply to the question referred the law enacted with retrospective operation.8. In support of his contention Mr. Kapur relied upon the observation of Desai, C. J., in M/s. Rampur Distillery Chemical Works Ltd. v. Commissioner of Income Tax U. P., I. T. Ref. No. 362 of 1958 D/- 17-1-1964 (All) to the following effect:"The argument was that though the High Court has to answer the question referred to it with reference to the law in force in 1957 (when the Tribunal disposed of the appeal) what that law was has to be discovered today with reference to the law existing today. What was the law in 1957 on the basis of which the Tribunal disposed of the appeal has certainly to be decided by this Court today but what has to be decided is the law existing in 1957 and not deemed to exist in 1957 by virtue of an amendment in the law made in 1962.But in that case, in the view of the High Court the amendment made by the amending statute of 1962 which came into force after the reference was made by the Income-tax Tribunal had no retrospective operation, and the question referred by the Tribunal had to be answered by the High Court in the light of the relevant law applicable at the date of the transaction. The observation relied upon has to be read in the context of the finding of the High Court as to the character of the amending legislation. The observation therefore does not assist the contention that even in cases where the relevant statute has been amended with retroactive operation, so as to apply to the transaction which forms the subject-matter of the reference, the High Court or this Court is bound in recording its opinion on the question referred to ignore the amended law. If what counsel contends is true, the answer given by the High Court or by this Court would have no value whatever in cases where by retroactive amendment of the law, the old law has been superseded and is substituted by a new statutory provision. Undoubtedly the Tribunal called upon to decide a taxing dispute must apply the relevant law applicable to a particular transaction to which the problem relates, and what law normally is the law applicable as on the date on which the transaction in dispute has taken place. If the law which the tribunal seeks to apply to the dispute is amended, so as to make the law applicable to the transaction in dispute, it would be bound to decide the question in the light of the law so amended. Similarly when the question has been referred to the High Court and in the meanwhile the law has been amended with retrospective operation, it would be the duty of the High Court to apply the law so amended if it applies. By taking notice of the law which has been substituted for the original provision, the High Court is giving effect to legislative intent and does no more than what must be deemed to be necessarily implicit in the question referred by the Tribunal, provided the question is couched in terms of sufficient amplitude to cover an enquiry into the question in the light of the amended law, and the enquiry does not necessitate investigation of fresh facts. If the question is not so couched as to invite the High Court to decide the question in the light of the law as amended or if it necessitates investigation of facts which have not been investigated, the High Court may refuse to answer the question. Application of the relevant law to a problem raised by the reference before the High Court is not normally excluded merely because at the date when the Tribunal decided the question the relevant law was not or could not be brought to its notice. There is nothing so peculiar in the nature of a reference under the Indian Income-tax Act or the Sales Tax Acts that in deciding it the High Court is restricted to the application of the law which has been superseded by legislation since the date when the reference was made by the Tax Tribunal and is obliged to refuse to apply the law which by legislative direction has to be applied to a particular transaction which is the subject-matter of the reference.
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In our view there is no substance in this contention. The question referred to the High Court posed a problem as to the liability of the respondent company to be assessed for the assessment year 1948-49. Two rival views were propounded before the Judge (Revisions) Sales Tax. One was that rates applicable to the fictional turnover for the year of assessment were those prevalent in the year 1948-49 and for the purpose of assessment they had to be applied to the turnover in the same proportion in which they would have applied if the option had not been exercised. That was the contention of the sales Tax Department. The contention of the assessee was that having opted, for the turnover of the previous year, the rates applicable to the turnover would be crystallised on the first day of the year of assessment and any modification since the commencement of the year in the rates would be inapplicable. This Court in the Modi Sugar Mills Ltd.s case, 1961-2 SCR 189 : (AIR 1961 SC 1047 ) accepted the contention raised by the assessee. But for the amendment, the question which was posed by the Judge (Revisions) Sales Tax would have to be answered as it was answered by the High Court. The Legislature has, however, amended the Act and has declared that notwithstanding the option exercised by the assesssee the tax would have to be computed in the light of the rates prevailing in 1948-49 as if they were projected upon the turnover of the previous year. The Legislature has expressly stated that this rule will prevail as if it was in force during the assessment year and all assessments will be made in the light of this amended rule. In answering the question which was submitted by the Judge (Revisions) Sales Tax, therefore, the law enacted by the Legislature is the law found incorporated in S. 31 by Amending Act III of 1963. This Court in giving its opinion on the question in the light of the amending Act is seeking to apply a legislative provision which was, by express enactment, in force at the time when the liability arose, for S. 31 enacted by Act III of 1963 is to be deemed to have been in operation at all material times in supersession of the previous rule declared by this Court. This Court is, therefore, not seeking to apply any law to the question posed before the High Court which was not in force on the date of the transaction which is the subject-matter of theobservation relied upon has to be read in the context of the finding of the High Court as to the character of the amending legislation. The observation therefore does not assist the contention that even in cases where the relevant statute has been amended with retroactive operation, so as to apply to the transaction which forms the subject-matter of the reference, the High Court or this Court is bound in recording its opinion on the question referred to ignore the amended law. If what counsel contends is true, the answer given by the High Court or by this Court would have no value whatever in cases where by retroactive amendment of the law, the old law has been superseded and is substituted by a new statutory provision. Undoubtedly the Tribunal called upon to decide a taxing dispute must apply the relevant law applicable to a particular transaction to which the problem relates, and what law normally is the law applicable as on the date on which the transaction in dispute has taken place. If the law which the tribunal seeks to apply to the dispute is amended, so as to make the law applicable to the transaction in dispute, it would be bound to decide the question in the light of the law so amended. Similarly when the question has been referred to the High Court and in the meanwhile the law has been amended with retrospective operation, it would be the duty of the High Court to apply the law so amended if it applies. By taking notice of the law which has been substituted for the original provision, the High Court is giving effect to legislative intent and does no more than what must be deemed to be necessarily implicit in the question referred by the Tribunal, provided the question is couched in terms of sufficient amplitude to cover an enquiry into the question in the light of the amended law, and the enquiry does not necessitate investigation of fresh facts. If the question is not so couched as to invite the High Court to decide the question in the light of the law as amended or if it necessitates investigation of facts which have not been investigated, the High Court may refuse to answer the question. Application of the relevant law to a problem raised by the reference before the High Court is not normally excluded merely because at the date when the Tribunal decided the question the relevant law was not or could not be brought to its notice. There is nothing so peculiar in the nature of a reference under the Indian Income-tax Act or the Sales Tax Acts that in deciding it the High Court is restricted to the application of the law which has been superseded by legislation since the date when the reference was made by the Tax Tribunal and is obliged to refuse to apply the law which by legislative direction has to be applied to a particular transaction which is the subject-matter of the reference.
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Satya Narain Vs. Dhuja Ram And Others | it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.Similarly in Krishan Chander v. Ram Lal ([1973] (2) S.C.C. 759, 769.) dealing with section 82(b) of the Act and examining the scheme and the object of the pro- visions this Court again held the same as mandatory. This Court observed: The provisions of sec. 82(b) would avoid any such delay as they make obligatory for a person filing an election petition when he makes an allegation of corrupt practice against any candidate to make him a party on pain of the petition being dismissed under section 8 6(1) if he omits to do..... This then is the rationale underlying the mandatory requirements of section 82(b). 10. It is true in Ch. Subba Rao v. Member Election Tribunal, Hyderabad([1964] (6) S.C.R. 213.) reiterating two earlier decisions viz . Kamaraj Nadar v. Kunju Thevar([1959] S.C.R. 583.) and Murarka v. Roop Sing ([1964] (3) S.C.R. 573.), the Court in view of the peculiar facts , add circumstances of that case and the nature of the defects held , that section 81(3) was substantially complied with and left open the , wider question whether section 81(3) or any part thereof is mandatory or directory. In a later decision in Dr. Anup Singh v. Shri Abdul Ghani and another([1965] (1) S.C.R. 38, 41.), which followed Subba Raos case (supra), , this Court observed: An exactly similar matter came to be considered by this Court in Ch. Subba Rao v. Member, Election Tribunal (3).-In that case also the copies were signed by the petitioner but there was no attestation in the sense that the words true copy were omitted above the signature of the petitioner. This Court held that as the signature in original was there in the copy, the presence of such original signature in the copy was sufficient to indicate that the copy was attested as true copy, even though the words true copy were not written above the signature in the copies. This Court further held that there was substantial compliance with section 81(3) of the Act and the petition could not be dismissed under section 90(3).Keeping in the forefront the proper functioning of democracy, the principal object of the Act is purity of elections. When therefore, an election of a returned candidate is challenged under the Act, expeditious trial of the election dispute is sought to be enforced by the legislature making all safeguards against delay. Trial has to be necessarily expedited to rid the candidate as well as the constituency interested in the result of the election, of any taint or suspicion of corrupt practices which are again clearly enumerated in the Act. To take, therefore, another important object of the Act, viz., expeditious, disposal of an election petition, by section 86(6) the trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons, to be recorded. Again under section 86(7), every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial. Further section 87(1) introduces the Civil Procedure Code only subject to the provisions of the Act and of any rules made thereunder. Section 87(2) makes a deeming provision for application of the Evidence, Act only subject to the Act. Therefore, there is no scope for free play in the application o f the provisions of those two Acts. The very object of expeditious trial will be defeated if the presentation of the election petition should be treated casualty and lightly permitting, all kinds of devices to delay the ultimate trial . The purpose of enclosing the copies of the election petition for all the respondents is to enable quick despatch of the notice with the contents of the allegations for service on the respondent or respondents so that there is no delay in the trial at this very initial stage when the election petition is presented. If there is any halt or arrest in progress of the case, the object of the Act will be completely frustrated. We are, therefore, clearly of opinion that the 1st part of section 8 1(3) with which we are mainly concerned in this appeal is a peremptory provision and total, non-compliance with the same will entail dismissal of the election petition under section 86 of the Act. We are, therefore, not required to consider t he second submission, of the learned counsel for the appellant with regard to substantial compliance made on the basis of the provisions of section 81(3) being, directory. We may only add here that, in the absence of any provision under the Act o r the rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation provided for under the Act. It may be noted that section 169 of the Act provides that the Central Government is the authority to make rules after consulting the Election Commission and in sub-section (3) thereof the rules have to be laid before each House of Parliament in the manner provided therein. The only reference to the High Court Rules is found in section 117 of the Act. At any rate, we do not feel called upon to pass on the High Court Rules referred to in the judgment of the High Court in this case, In the result we find no reason to interfere with the decision of the High Court dismissing the election petition. | 0[ds]There is no date given by Shri Mittal when her made his endorsement in the order sheet of the Registry. PW 3, who had initially scrutinised the petition and found the defects, was on leave on April, 24, 1972, and the Superintendent (CW 1) was only present. According to Shri Mittal, he. went to the Election Office along with the appellant and his Clerk, Manphool Sharma, and filed these papers at 2-00 P M. on April 24, 1972, and made also the above endorsement (Ext. PW 511.) Although, however, Shri Mittal was conscious that the papers had to be filed within time to save the defective petition from being dismissed, curiously enough, he did no t take the necessary care to get any official endorsement in the order sheet by the Deputy Registrar or even by the Superintendent of the Election Branch to the effect that the documents were filed and defects were removed on that day, namely, o n 24th April, 1972, notwithstanding the further fact that he had earlier at 11.00 A.M. on the same day requested the Deputy Registrar for time to remove the defects and the next date was fixed on April 28, 1972. In face of the order of the Deputy Registrar of 24th April, Shri Mittals responsibility as counsel was greater than he seemed to have thought. On April 28, 1972, Shri Mittal informed the Deputy Registrar over the phone that he was indisposed and requested for time till the next day which was given. He deposed that he had even informed the Deputy Registrar that scrutiny could be made in his absence since the defects had already been removed. On this particular aspect of the matter, the Deputy Registrar was silent in his evidence and although it was Shri Mittal again who personally examined the Deputy Registrar in court, he never put this question to him with regard to his informing him over the phone about removal of defects on 24th Apri l. Again, from Shri Mittals evidence it. appears that, although he was feverish, he actually came to the Election Office on April 28, 1972, in connection with Election case No. 3 of 1972 (Sagar Ram v. Banarsi Das &Ors.) and removed certain defects in that case on that day, namely 28th April, 1972 although that case was set down for April, 29, 1972, which date had been fixed by the Deputy Registrar in his presence on April 24, 1972. There is an endorsement in that case by Shri Mi ttal, this time, with date 28h April, 1972, below the order of the Deputy Registrar dated April 24, 1972, to the effect objections removed. The records of that case were also called for in the High Court and were also shown to us here.It appears that Shri Dhillon even did not file his vakalatnama in that suit and at one stage when he had appeared on behalf of the appellant in that suit, it was recorded in the , order sheet, as was the practice of that court that he was appearing as proxy for the original counsel. There was, however, no such entry in the order sheet that he appeared on behalf of the appellant on April 24, 1972. From the evidence of RW 1, who deposed from the records of the suit produced in the court and gave some convincing reasons, the High Court was reasonably and, in our opinion, rightly satisfied that the appellant appeared in the court of the subordinate Judge, Jind, on April 24, 1972. The High Court has also rightly held that PW s 7 and 1 0 gave hazy evidence from their memory with regard to the appearance of the appellant in the suit on April 24, 1972. The High Court also found several infirmities and contradictions in the evidence of Shri Mittal. It is nobodys case that if the appellant appeared in the suit at Jind on 24th April he could be present in the Election Branch at Chandigarh at2.00 P.M. on that day. PW3 has correctly deposed that the words (objections removed in the handwriting of Shri R.S. Mittal, Advocate and the signature of Shri R. S. Mittal thereunder were not there when he made the endorsement informed (Ext PW 3/1) on April 28, 1972. Even the Deputy Registrar has admitted in his evidence that the endorsement objections removed in the handwriting of and above the signature of Mr. R. S. Mittal was not made in his presence. He also stated that I do not recollect having seen this endorsement at the time I passed my order, dated April 28, 1972. The evidence of the Deputy Registrar consistent with that of PW 3 is rightly preferred by the High Court to the evidence of Shri Mittal, of the appellant and even of the Superintendent of the Election Branch who also deposed from memory. After again carefully examining the evidence of all the witnesses on this point, we have no reason to differ from the conclusion of the High Court that the requisite spare copies of the election petition were not submitted by the appellant on April 24, 1972.We will, therefore, have to decide the first submission of the learned counsel for the appellant on the basis that the spare copies were not filed within the period of limitation.5. Whether a particular provision in a statute is mandatory or directory has to be construed from the scheme and object of the provisions-The right to challenge an election is conferred under the Act which is made in conformity with the provisions of Article 329(B) of the Constitution. It is well settled that it is a special right conferred under a self-contained special law and the court will have to seek answer to the questions raised within the four corners of the Act and the powers of the court are circumscribed by its provisions. it is not a common law right and an election petition cannot be equated with a plaint in a civil suit.10. It is true in Ch. Subba Rao v. Member Election Tribunal, Hyderabad([1964] (6) S.C.R. 213.) reiterating two earlier decisions viz . Kamaraj Nadar v. Kunju Thevar([1959] S.C.R. 583.) and Murarka v. Roop Sing ([1964] (3) S.C.R. 573.), the Court in view of the peculiar facts , add circumstances of that case and the nature of the defects held , that section 81(3) was substantially complied with and left open the , wider question whether section 81(3) or any part thereof is mandatory or directory. In a later decision in Dr. Anup Singh v. Shri Abdul Ghani and another([1965] (1) S.C.R. 38, 41.), which followed Subba Raos case (supra), , this Court observed:An exactly similar matter came to be considered by this Court in Ch. Subba Rao v. Member, Election Tribunal (3).-In that case also the copies were signed by the petitioner but there was no attestation in the sense that the words true copy were omitted above the signature of the petitioner. This Court held that as the signature in original was there in the copy, the presence of such original signature in the copy was sufficient to indicate that the copy was attested as true copy, even though the words true copy were not written above the signature in the copies. This Court further held that there was substantial compliance with section 81(3) of the Act and the petition could not be dismissed under section 90(3).Keeping in the forefront the proper functioning of democracy, the principal object of the Act is purity of elections. When therefore, an election of a returned candidate is challenged under the Act, expeditious trial of the election dispute is sought to be enforced by the legislature making all safeguards against delay. Trial has to be necessarily expedited to rid the candidate as well as the constituency interested in the result of the election, of any taint or suspicion of corrupt practices which are again clearly enumerated in the Act. To take, therefore, another important object of the Act, viz., expeditious, disposal of an election petition, by section 86(6) the trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons, to be recorded. Again under section 86(7),every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial. Further section 87(1) introduces the Civil Procedure Code only subject to the provisions of the Act and of any rules made thereunder. Section 87(2) makes a deeming provision for application of the Evidence, Act only subject to the Act. Therefore, there is no scope for free play in the application o f the provisions of those two Acts. The very object of expeditious trial will be defeated if the presentation of the election petition should be treated casualty and lightly permitting, all kinds of devices to delay the ultimate trial . The purpose of enclosing the copies of the election petition for all the respondents is to enable quick despatch of the notice with the contents of the allegations for service on the respondent or respondents so that there is no delay in the trial at this very initial stage when the election petition is presented. If there is any halt or arrest in progress of the case, the object of the Act will be completely frustrated. We are, therefore, clearly of opinion that the 1st part of section 8 1(3) with which we are mainly concerned in this appeal is a peremptory provision and total, non-compliance with the same will entail dismissal of the election petition under section 86 of the Act.We are, therefore, not required to consider t he second submission, of the learned counsel for the appellant with regard to substantial compliance made on the basis of the provisions of section 81(3) being, directory. We may only add here that, in the absence of any provision under the Act o r the rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation provided for under the Act. It may be noted that section 169 of the Act provides that the Central Government is the authority to make rules after consulting the Election Commission and in sub-section (3) thereof the rules have to be laid before each House of Parliament in the manner provided therein. The only reference to the High Court Rules is found in section 117 of the Act. At any rate, we do not feel called upon to pass on the High Court Rules referred to in the judgment of the High Court in this case, In the result we find no reason to interfere with the decision of the High Court dismissing the election petition. | 0 | 5,062 | 2,101 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.Similarly in Krishan Chander v. Ram Lal ([1973] (2) S.C.C. 759, 769.) dealing with section 82(b) of the Act and examining the scheme and the object of the pro- visions this Court again held the same as mandatory. This Court observed: The provisions of sec. 82(b) would avoid any such delay as they make obligatory for a person filing an election petition when he makes an allegation of corrupt practice against any candidate to make him a party on pain of the petition being dismissed under section 8 6(1) if he omits to do..... This then is the rationale underlying the mandatory requirements of section 82(b). 10. It is true in Ch. Subba Rao v. Member Election Tribunal, Hyderabad([1964] (6) S.C.R. 213.) reiterating two earlier decisions viz . Kamaraj Nadar v. Kunju Thevar([1959] S.C.R. 583.) and Murarka v. Roop Sing ([1964] (3) S.C.R. 573.), the Court in view of the peculiar facts , add circumstances of that case and the nature of the defects held , that section 81(3) was substantially complied with and left open the , wider question whether section 81(3) or any part thereof is mandatory or directory. In a later decision in Dr. Anup Singh v. Shri Abdul Ghani and another([1965] (1) S.C.R. 38, 41.), which followed Subba Raos case (supra), , this Court observed: An exactly similar matter came to be considered by this Court in Ch. Subba Rao v. Member, Election Tribunal (3).-In that case also the copies were signed by the petitioner but there was no attestation in the sense that the words true copy were omitted above the signature of the petitioner. This Court held that as the signature in original was there in the copy, the presence of such original signature in the copy was sufficient to indicate that the copy was attested as true copy, even though the words true copy were not written above the signature in the copies. This Court further held that there was substantial compliance with section 81(3) of the Act and the petition could not be dismissed under section 90(3).Keeping in the forefront the proper functioning of democracy, the principal object of the Act is purity of elections. When therefore, an election of a returned candidate is challenged under the Act, expeditious trial of the election dispute is sought to be enforced by the legislature making all safeguards against delay. Trial has to be necessarily expedited to rid the candidate as well as the constituency interested in the result of the election, of any taint or suspicion of corrupt practices which are again clearly enumerated in the Act. To take, therefore, another important object of the Act, viz., expeditious, disposal of an election petition, by section 86(6) the trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons, to be recorded. Again under section 86(7), every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial. Further section 87(1) introduces the Civil Procedure Code only subject to the provisions of the Act and of any rules made thereunder. Section 87(2) makes a deeming provision for application of the Evidence, Act only subject to the Act. Therefore, there is no scope for free play in the application o f the provisions of those two Acts. The very object of expeditious trial will be defeated if the presentation of the election petition should be treated casualty and lightly permitting, all kinds of devices to delay the ultimate trial . The purpose of enclosing the copies of the election petition for all the respondents is to enable quick despatch of the notice with the contents of the allegations for service on the respondent or respondents so that there is no delay in the trial at this very initial stage when the election petition is presented. If there is any halt or arrest in progress of the case, the object of the Act will be completely frustrated. We are, therefore, clearly of opinion that the 1st part of section 8 1(3) with which we are mainly concerned in this appeal is a peremptory provision and total, non-compliance with the same will entail dismissal of the election petition under section 86 of the Act. We are, therefore, not required to consider t he second submission, of the learned counsel for the appellant with regard to substantial compliance made on the basis of the provisions of section 81(3) being, directory. We may only add here that, in the absence of any provision under the Act o r the rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation provided for under the Act. It may be noted that section 169 of the Act provides that the Central Government is the authority to make rules after consulting the Election Commission and in sub-section (3) thereof the rules have to be laid before each House of Parliament in the manner provided therein. The only reference to the High Court Rules is found in section 117 of the Act. At any rate, we do not feel called upon to pass on the High Court Rules referred to in the judgment of the High Court in this case, In the result we find no reason to interfere with the decision of the High Court dismissing the election petition.
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to decide the first submission of the learned counsel for the appellant on the basis that the spare copies were not filed within the period of limitation.5. Whether a particular provision in a statute is mandatory or directory has to be construed from the scheme and object of the provisions-The right to challenge an election is conferred under the Act which is made in conformity with the provisions of Article 329(B) of the Constitution. It is well settled that it is a special right conferred under a self-contained special law and the court will have to seek answer to the questions raised within the four corners of the Act and the powers of the court are circumscribed by its provisions. it is not a common law right and an election petition cannot be equated with a plaint in a civil suit.10. It is true in Ch. Subba Rao v. Member Election Tribunal, Hyderabad([1964] (6) S.C.R. 213.) reiterating two earlier decisions viz . Kamaraj Nadar v. Kunju Thevar([1959] S.C.R. 583.) and Murarka v. Roop Sing ([1964] (3) S.C.R. 573.), the Court in view of the peculiar facts , add circumstances of that case and the nature of the defects held , that section 81(3) was substantially complied with and left open the , wider question whether section 81(3) or any part thereof is mandatory or directory. In a later decision in Dr. Anup Singh v. Shri Abdul Ghani and another([1965] (1) S.C.R. 38, 41.), which followed Subba Raos case (supra), , this Court observed:An exactly similar matter came to be considered by this Court in Ch. Subba Rao v. Member, Election Tribunal (3).-In that case also the copies were signed by the petitioner but there was no attestation in the sense that the words true copy were omitted above the signature of the petitioner. This Court held that as the signature in original was there in the copy, the presence of such original signature in the copy was sufficient to indicate that the copy was attested as true copy, even though the words true copy were not written above the signature in the copies. This Court further held that there was substantial compliance with section 81(3) of the Act and the petition could not be dismissed under section 90(3).Keeping in the forefront the proper functioning of democracy, the principal object of the Act is purity of elections. When therefore, an election of a returned candidate is challenged under the Act, expeditious trial of the election dispute is sought to be enforced by the legislature making all safeguards against delay. Trial has to be necessarily expedited to rid the candidate as well as the constituency interested in the result of the election, of any taint or suspicion of corrupt practices which are again clearly enumerated in the Act. To take, therefore, another important object of the Act, viz., expeditious, disposal of an election petition, by section 86(6) the trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons, to be recorded. Again under section 86(7),every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial. Further section 87(1) introduces the Civil Procedure Code only subject to the provisions of the Act and of any rules made thereunder. Section 87(2) makes a deeming provision for application of the Evidence, Act only subject to the Act. Therefore, there is no scope for free play in the application o f the provisions of those two Acts. The very object of expeditious trial will be defeated if the presentation of the election petition should be treated casualty and lightly permitting, all kinds of devices to delay the ultimate trial . The purpose of enclosing the copies of the election petition for all the respondents is to enable quick despatch of the notice with the contents of the allegations for service on the respondent or respondents so that there is no delay in the trial at this very initial stage when the election petition is presented. If there is any halt or arrest in progress of the case, the object of the Act will be completely frustrated. We are, therefore, clearly of opinion that the 1st part of section 8 1(3) with which we are mainly concerned in this appeal is a peremptory provision and total, non-compliance with the same will entail dismissal of the election petition under section 86 of the Act.We are, therefore, not required to consider t he second submission, of the learned counsel for the appellant with regard to substantial compliance made on the basis of the provisions of section 81(3) being, directory. We may only add here that, in the absence of any provision under the Act o r the rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation provided for under the Act. It may be noted that section 169 of the Act provides that the Central Government is the authority to make rules after consulting the Election Commission and in sub-section (3) thereof the rules have to be laid before each House of Parliament in the manner provided therein. The only reference to the High Court Rules is found in section 117 of the Act. At any rate, we do not feel called upon to pass on the High Court Rules referred to in the judgment of the High Court in this case, In the result we find no reason to interfere with the decision of the High Court dismissing the election petition.
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Joseph Vs. State of Kerala | the deceased when she left the Convent on the evening of the fateful day with him. As noticed earlier, the deceased was last seen alive only with the appellant and thereafter she neither returned to the Convent nor her home, alive and not found anywhere else also by any one, outside the company of the appellant. 13. Taking advantage of the discrepancies pointed out by the Sessions Judge, the learned counsel for the appellant also tried to contend that the evidence of PWs-11 to 14 is not trustworthy. It is not that every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightaway condemned and their evidence discarded in its entirety. On going through the entire evidence of PWs-11 to 14, we are unable to come to the conclusion that they are not speaking the truth or that they cannot inspire confidence in the mind of any reasonable person or authority to adjudge disputed questions of fact, so as to eschew entirely their evidence from consideration, whatsoever. 14. The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313, Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh, 2000(1) SCC 471). That missing link to connect the appellant-accused, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under Section 302 for committing the murder of Gracy and for robbing her of her jewellery worn by her - MOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationship - being the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless women. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 376. 15. The charge under Section 376, IPC, is mainly fastened upon the appellant on the `last seen together theory. The factum of rape of the deceased is sought to be proved from Ex. P-20, a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should (might ?) have had sexual intercourse before her death. Ex. P-21, chemical report, also showed that semen was detected in one of the under skirts found on the body of the deceased. Ex. P-8, certificate issued by PW-15, the doctor, also showed that the accused-appellant was potent. But in the Report, Ex. P-21, it was specifically stated that the dhoti of the appellant, subjected to chemical examination, contained no stains of blood or semen. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grownup lady and in the process, some injuries would have been found on the vaginaprivate parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, IPC. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376, IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside. | 0[ds]9. So far as the case on hand is concerned, there is direct evidence of the Sisters of the Convent where the deceased was working,5 and 6 to prove beyond reasonable doubt that it was the appellant who had taken the appellant from the Convent at about 5.30 p.m., on 16.9.94 on the pretext that her mother was seriously ill and hospitalised. Even the trial Court which returned a verdict of acquittal was very much convinced of this fact against the appellant and satisfied with the evidence of5 to 8. They had nothing against the accused and no reason to speak falsely to implicate the appellant, and despite searching and severen made nothing could be brought out to discredit their evidence., the brother of the accused, and, the member of the Panchayat, also confirmed that5 and 6 had identified the appellant as the person who had taken away Gracy on 16.9.94 when they went to enquire about the deceased, accompanied by the accused also. The learned Judges of the High Court also were got convinced with the conclusions of the trial Court in this connection and accepted the same to be correct on the basis of the evidence of9 and 26. We see no infirmity whatsoever either in the manner of appreciation of their evidence or the reasons assigned in support of the same and, therefore, this finding of fact appears to be well justified on the materials on record. The same does not also call for interference in this appeal10. As for the homicidal fact is concerned, there is only circumstantial evidence. It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to an hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in this case should be to find out whether the crime was committed by the appellant and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the appellant. The formidable incriminating circumstances against the appellant, as far as we could see, are that the deceased was taken away from the Convent by the appellant under a false pretext and she was last seen alive only in his company and that it is on the information furnished by the appellant in the course of investigation that the jewels of the deceased, which were sold to1 by the appellant, were seized under Ex.5 and 6 were categorical in their evidence that those jewels were worn by the deceased at the time when she left the Convent with the appellant, who conducted the post mortem, noted about 20 injuries in detail in his Report, Ex.. Though the learned counsel for the appellant attempted to substantiate that some of the injuries taken together with height of the deceased and the width of the railway track could not have possibly resulted by laying the victim on the track and, therefore, it should be reasonably presumed that the deceased committed suicide by jumping before the moving train, we are unable to persuade ourselves to agree with the said line of thinking since it would require too manyl assumptions to be made to believe such suggestions. Having regard to the categorical and positive medical opinion that persons who commit suicide usually do not lay in such posture and the further evidence of0 that though he could not state that the victim was strangulated before she was laid on the railway track, he was at any rate definite in his opinion that the nature and type of injuries sustained by the victim is suggestive of only a case of homicide. Though the nature of all such injuries could not rationally be explained, they could very well be inflicted when the body got twisted and pushed away from its original position due to the reaction ofe in the body the moment it first got into contact with the moving train and also on account of being thrown away due to the impact of the fast moving train. There is nothing on record to suggest or even surmise a plausible reason of her own on that evening for the victim to commit suicide. Consequently, the theory of suicide suggested to save the appellant seem to be more a matter (of) invention based on imagination than even a remote possibility warranted or could reasonably be justified on the proved facts5 to 8 are the inmates of the Convent holding different positions therein and all of them identified MOs 1 to 3 as the ornaments belonging to the deceased Gracy and which she was wearing when she left the Convent with the accused., the brother of the victim, also identified the jewels. They have also spoken in unison to the other details relevant, which when cumulatively taken up for consideration reasonably as well as with great certainty establish the various incriminating factors against the appellant involving with the crime, which, if at all, could be properly and reasonably be explained only by him. But they remain totally undeciphered and unexplained by the attitude of total denial of everything by the appellant.1 was working as Manager in the Jewellery Shop in question at Angamaly where the appellant was said to have taken MOs 1 to 3, and sold them for Rs.. Before actual sale, the jewellery was weighed and the slip, Ex., seized from the diary of the appellant, was said to have been prepared and given to him at that time. The worker in the shop,, who prepared the slip after weighing the MOs 1 to 3, has also identified the jewels and the slip.2 is the gold plater having his shop adjacent to the jewellery shop in question. Their evidence, though certain discrepancies not so material as to effect (affect ?) their truthfulness are attempted to be pointed out, positively prove that only the accused sold those jewels representing to be that of his wife and money was urgently required to meet some hospital expenses. There is no reason for them to either falsely implicate or depose against the appellant and we see no relevant or valid reason to disbelieve them. The adverse comments made by the trial judge against their evidence merely on account of certain minor discrepancies are neither justified nor those discrepancies could themselves be said to be enough to detract from the truthfulness or genuineness of their deposition., a former employee of the accused in his quarry, was shown to have been paid Rs. 2,500by the accused and though the prosecution would attempt to connect the same with the sale proceeds of the jewellery of the deceased,7 could not specifically remember the actual date of the said payment. The appellant could not explain how he came into possession of the ornaments belonging to and worn by the deceased when she left the Convent on the evening of the fateful day with him. As noticed earlier, the deceased was last seen alive only with the appellant and thereafter she neither returned to the Convent nor her home, alive and not found anywhere else also by any one, outside the company of the appellant13. Taking advantage of the discrepancies pointed out by the Sessions Judge, the learned counsel for the appellant also tried to contend that the evidence of1 to 14 is not trustworthy. It is not that every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightaway condemned and their evidence discarded in its entirety. On going through the entire evidence of1 to 14, we are unable to come to the conclusion that they are not speaking the truth or that they cannot inspire confidence in the mind of any reasonable person or authority to adjudge disputed questions of fact, so as to eschew entirely their evidence from consideration, whatsoever14. The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313, Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh, 2000(1) SCC 471). That missing link to connect the, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under Section 302 for committing the murder of Gracy and for robbing her of her jewellery worn by herMOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationshipbeing the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless women. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 37615. The charge under Section 376, IPC, is mainly fastened upon the appellant on the `last seen together theory. The factum of rape of the deceased is sought to be proved from Ex., a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should (might ?) have had sexual intercourse before her death. Ex., chemical report, also showed that semen was detected in one of the under skirts found on the body of the deceased. Ex., the doctor, also showed that thet was potent. But in the Report, Ex., it was specifically stated that the dhoti of the appellant, subjected to chemical examination, contained no stains of blood or semen. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grownup lady and in the process, some injuries would have been found on the vaginaprivate parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, IPC. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376, IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside. | 0 | 4,150 | 2,345 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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the deceased when she left the Convent on the evening of the fateful day with him. As noticed earlier, the deceased was last seen alive only with the appellant and thereafter she neither returned to the Convent nor her home, alive and not found anywhere else also by any one, outside the company of the appellant. 13. Taking advantage of the discrepancies pointed out by the Sessions Judge, the learned counsel for the appellant also tried to contend that the evidence of PWs-11 to 14 is not trustworthy. It is not that every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightaway condemned and their evidence discarded in its entirety. On going through the entire evidence of PWs-11 to 14, we are unable to come to the conclusion that they are not speaking the truth or that they cannot inspire confidence in the mind of any reasonable person or authority to adjudge disputed questions of fact, so as to eschew entirely their evidence from consideration, whatsoever. 14. The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313, Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh, 2000(1) SCC 471). That missing link to connect the appellant-accused, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under Section 302 for committing the murder of Gracy and for robbing her of her jewellery worn by her - MOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationship - being the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless women. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 376. 15. The charge under Section 376, IPC, is mainly fastened upon the appellant on the `last seen together theory. The factum of rape of the deceased is sought to be proved from Ex. P-20, a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should (might ?) have had sexual intercourse before her death. Ex. P-21, chemical report, also showed that semen was detected in one of the under skirts found on the body of the deceased. Ex. P-8, certificate issued by PW-15, the doctor, also showed that the accused-appellant was potent. But in the Report, Ex. P-21, it was specifically stated that the dhoti of the appellant, subjected to chemical examination, contained no stains of blood or semen. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grownup lady and in the process, some injuries would have been found on the vaginaprivate parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, IPC. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376, IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside.
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said payment. The appellant could not explain how he came into possession of the ornaments belonging to and worn by the deceased when she left the Convent on the evening of the fateful day with him. As noticed earlier, the deceased was last seen alive only with the appellant and thereafter she neither returned to the Convent nor her home, alive and not found anywhere else also by any one, outside the company of the appellant13. Taking advantage of the discrepancies pointed out by the Sessions Judge, the learned counsel for the appellant also tried to contend that the evidence of1 to 14 is not trustworthy. It is not that every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightaway condemned and their evidence discarded in its entirety. On going through the entire evidence of1 to 14, we are unable to come to the conclusion that they are not speaking the truth or that they cannot inspire confidence in the mind of any reasonable person or authority to adjudge disputed questions of fact, so as to eschew entirely their evidence from consideration, whatsoever14. The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313, Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh, 2000(1) SCC 471). That missing link to connect the, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under Section 302 for committing the murder of Gracy and for robbing her of her jewellery worn by herMOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationshipbeing the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless women. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 37615. The charge under Section 376, IPC, is mainly fastened upon the appellant on the `last seen together theory. The factum of rape of the deceased is sought to be proved from Ex., a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should (might ?) have had sexual intercourse before her death. Ex., chemical report, also showed that semen was detected in one of the under skirts found on the body of the deceased. Ex., the doctor, also showed that thet was potent. But in the Report, Ex., it was specifically stated that the dhoti of the appellant, subjected to chemical examination, contained no stains of blood or semen. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grownup lady and in the process, some injuries would have been found on the vaginaprivate parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, IPC. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376, IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside.
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Hindustan Shipyard Ltd. and Ors Vs. Dr. P. Sambasiva Rao and Dr. S. Prasada Rao | April 1, 1986 and he should also be given two advance increments and official accommodation within six months.7. Feeling aggrieved by the aforesaid decisions of the Andhra Pradesh High Court, the appellant-Corporation has filed these appeals. 8. Shri Ram Kumar, the learned counsel appearing for the appellant- Corporation, has placed before us the Recruitment Rules framed by the appellant-Corporation for appointment against regular/temporary posts in connection with the affairs of the company including the post of Medical Officer. Under the said Rules, direct recruitment is to be resorted to when the post is not to be filled in by promotion as per the promotion procedure. For the purpose of direct recruitment, the Rules provide that normally an advertisement is issued in leading daily newspapers on all India basis to tap the potential available from the employment market, but simultaneously other sources of recruitment are also trapped and where the job required exceptional skills, knowledge and experience, which are not normally available in the employment market, the competent authority may decide to fill up the post on deputation of officers from the Central/State Governments and other public sector undertakings. The Rules make provision for screening of applications received in response to advertisements and preparation of a list of candidates who may be called for interview before the Selection Committee. The Rules provide through one or all the following selection methods: (i) Competitive Aptitude/Technical Test;(ii) Group Task; and(iii) Personal Interview. The recommendations of the Selection Committee are submitted to the competent authority for approval and after obtaining the approval of the competent authority appointment orders are issued.9. The submission of Shri Ram Kumar is that regular appointment on the post of Medical Officer can only be made through a process of selection by the Selection Committee in accordance with the aforementioned Rules and the High Court was in error in directing regularisation of all the three medical officers with effect from April 1, 1986 without their being required to undergo selection by the Selection Committee. On behalf of the respondents- medical officers, it has been urged that having regard to the fact that they had been working as medical officers for a number of years and there was no complaint about their performance during this period, the High Court was justified in giving the direction for their regularisation with effect from April 1, 1986 and for payment of regular salary at par with other medical officers with effect from that date. It has also been submitted on behalf of the respondents-medical officers that after 1984 no regular selection has been made and the respondents-medical officers had no opportunity of being considered for regular selection by the Selection Committee and that in these circumstances the High Court has not committed any error in giving the direction regarding regularisation. The learned counsel for the respondents have placed reliance on the decisions of this Court in Dr. A.K. Jain and others v. Union of India and others, 1987 Supp. SCC 497 . 10. We are unable to endorse the direction given by the High Court regarding regularisation of the respondents-medical officers with effect from April 1, 1986. The process of regularisation involves regular appointment which can be done only in accordance with the prescribed procedure. Having regard to the rules which have been made by the appellant-Corporation, regular appointment on the post of medical officer can only be made after the duly constituted Selection Committee has found the person suitable for such appointment. Dr. P. Sambasiva Rao, though he had been working since 1976, was considered by the Selection Committee for regular appointment in the year 1981 and was not found suitable for such regular appointment. Dr. J. Sanjeeva Kumar and Dr. S. Prasada Rao were never considered by the Selection Committee for regular appointment. The fact that no regular selection has been made after their appointment on ad hoc basis does not mean that they are entitled to be regularised with effect from April 1, 1986. In view of the Rules prescribed by the appellant-Corporation, regularisation of the respondent-medical officers on the post of medical officer can be made only after they are considered and found suitable for such appointment by a duly constituted Selection Committee. As a result of the direction for regularisation given by the High Court, the requirement in the Rules regarding selection by a Selection Committee for the purpose of regular appointment on the post of medical officer has been dispensed with. This, in our opinion, was impermissible.11. The decision in Dr. A.K. Jain and others v. Union of India and others (supra) on which reliance has been placed on behalf of the respondent-medical officers, does not lend any assistance to them. In that case it was directed that the regularisation of the Assistant Medical Officers/Assistant Divisional Medical Officers who were appointed on ad hoc basis upto October 1, 1984 shall be made in consultation with the Union Public Service Commission on the evaluation of their work and conduct on the basis of their confidential reports in respect of a period subsequent to October 1, 1982. In Dr. M.A. Haque and others v. Union of India and others, 1883(2) SCT 618(SC) : 1993(2) SC 213, this Court has deprecated the practice of by-passing of the Public Service Commission which would open a back door for illegal recruitment without limit. The direction given by the High Court that the respondent- medical officers should be regularised with effect from April 1, 1986 cannot, therefore, be upheld. The only direction that can be given in the matter of regularisation is that the respondent-medical officers should be considered by a duly constituted Selection Committee as per the Rules for the purpose of regular appointment on the post of medical officer and the appellant- Corporation should constitute a Selection Committee for that purpose. 12. We are, however, not inclined to interfere with the direction given by the High Court for payment of regular pay scales to the respondent-medical officers with effect from April 1, 1986. | 1[ds]10. We are unable to endorse the direction given by the High Court regarding regularisation of the respondents-medical officers with effect from April 1, 1986. The process of regularisation involves regular appointment which can be done only in accordance with the prescribed procedure. Having regard to the rules which have been made by the appellant-Corporation, regular appointment on the post of medical officer can only be made after the duly constituted Selection Committee has found the person suitable for such appointment. Dr. P. Sambasiva Rao, though he had been working since 1976, was considered by the Selection Committee for regular appointment in the year 1981 and was not found suitable for such regular appointment. Dr. J. Sanjeeva Kumar and Dr. S. Prasada Rao were never considered by the Selection Committee for regular appointment. The fact that no regular selection has been made after their appointment on ad hoc basis does not mean that they are entitled to be regularised with effect from April 1, 1986. In view of the Rules prescribed by the appellant-Corporation, regularisation of the respondent-medical officers on the post of medical officer can be made only after they are considered and found suitable for such appointment by a duly constituted Selection Committee. As a result of the direction for regularisation given by the High Court, the requirement in the Rules regarding selection by a Selection Committee for the purpose of regular appointment on the post of medical officer has been dispensed with. This, in our opinion, was impermissible.11. The decision in Dr. A.K. Jain and others v. Union of India and others (supra) on which reliance has been placed on behalf of the respondent-medical officers, does not lend any assistance to them.We are, however, not inclined to interfere with the direction given by the High Court for payment of regular pay scales to the respondent-medical officers with effect from April 1, 1986. | 1 | 3,075 | 346 | ### Instruction:
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April 1, 1986 and he should also be given two advance increments and official accommodation within six months.7. Feeling aggrieved by the aforesaid decisions of the Andhra Pradesh High Court, the appellant-Corporation has filed these appeals. 8. Shri Ram Kumar, the learned counsel appearing for the appellant- Corporation, has placed before us the Recruitment Rules framed by the appellant-Corporation for appointment against regular/temporary posts in connection with the affairs of the company including the post of Medical Officer. Under the said Rules, direct recruitment is to be resorted to when the post is not to be filled in by promotion as per the promotion procedure. For the purpose of direct recruitment, the Rules provide that normally an advertisement is issued in leading daily newspapers on all India basis to tap the potential available from the employment market, but simultaneously other sources of recruitment are also trapped and where the job required exceptional skills, knowledge and experience, which are not normally available in the employment market, the competent authority may decide to fill up the post on deputation of officers from the Central/State Governments and other public sector undertakings. The Rules make provision for screening of applications received in response to advertisements and preparation of a list of candidates who may be called for interview before the Selection Committee. The Rules provide through one or all the following selection methods: (i) Competitive Aptitude/Technical Test;(ii) Group Task; and(iii) Personal Interview. The recommendations of the Selection Committee are submitted to the competent authority for approval and after obtaining the approval of the competent authority appointment orders are issued.9. The submission of Shri Ram Kumar is that regular appointment on the post of Medical Officer can only be made through a process of selection by the Selection Committee in accordance with the aforementioned Rules and the High Court was in error in directing regularisation of all the three medical officers with effect from April 1, 1986 without their being required to undergo selection by the Selection Committee. On behalf of the respondents- medical officers, it has been urged that having regard to the fact that they had been working as medical officers for a number of years and there was no complaint about their performance during this period, the High Court was justified in giving the direction for their regularisation with effect from April 1, 1986 and for payment of regular salary at par with other medical officers with effect from that date. It has also been submitted on behalf of the respondents-medical officers that after 1984 no regular selection has been made and the respondents-medical officers had no opportunity of being considered for regular selection by the Selection Committee and that in these circumstances the High Court has not committed any error in giving the direction regarding regularisation. The learned counsel for the respondents have placed reliance on the decisions of this Court in Dr. A.K. Jain and others v. Union of India and others, 1987 Supp. SCC 497 . 10. We are unable to endorse the direction given by the High Court regarding regularisation of the respondents-medical officers with effect from April 1, 1986. The process of regularisation involves regular appointment which can be done only in accordance with the prescribed procedure. Having regard to the rules which have been made by the appellant-Corporation, regular appointment on the post of medical officer can only be made after the duly constituted Selection Committee has found the person suitable for such appointment. Dr. P. Sambasiva Rao, though he had been working since 1976, was considered by the Selection Committee for regular appointment in the year 1981 and was not found suitable for such regular appointment. Dr. J. Sanjeeva Kumar and Dr. S. Prasada Rao were never considered by the Selection Committee for regular appointment. The fact that no regular selection has been made after their appointment on ad hoc basis does not mean that they are entitled to be regularised with effect from April 1, 1986. In view of the Rules prescribed by the appellant-Corporation, regularisation of the respondent-medical officers on the post of medical officer can be made only after they are considered and found suitable for such appointment by a duly constituted Selection Committee. As a result of the direction for regularisation given by the High Court, the requirement in the Rules regarding selection by a Selection Committee for the purpose of regular appointment on the post of medical officer has been dispensed with. This, in our opinion, was impermissible.11. The decision in Dr. A.K. Jain and others v. Union of India and others (supra) on which reliance has been placed on behalf of the respondent-medical officers, does not lend any assistance to them. In that case it was directed that the regularisation of the Assistant Medical Officers/Assistant Divisional Medical Officers who were appointed on ad hoc basis upto October 1, 1984 shall be made in consultation with the Union Public Service Commission on the evaluation of their work and conduct on the basis of their confidential reports in respect of a period subsequent to October 1, 1982. In Dr. M.A. Haque and others v. Union of India and others, 1883(2) SCT 618(SC) : 1993(2) SC 213, this Court has deprecated the practice of by-passing of the Public Service Commission which would open a back door for illegal recruitment without limit. The direction given by the High Court that the respondent- medical officers should be regularised with effect from April 1, 1986 cannot, therefore, be upheld. The only direction that can be given in the matter of regularisation is that the respondent-medical officers should be considered by a duly constituted Selection Committee as per the Rules for the purpose of regular appointment on the post of medical officer and the appellant- Corporation should constitute a Selection Committee for that purpose. 12. We are, however, not inclined to interfere with the direction given by the High Court for payment of regular pay scales to the respondent-medical officers with effect from April 1, 1986.
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10. We are unable to endorse the direction given by the High Court regarding regularisation of the respondents-medical officers with effect from April 1, 1986. The process of regularisation involves regular appointment which can be done only in accordance with the prescribed procedure. Having regard to the rules which have been made by the appellant-Corporation, regular appointment on the post of medical officer can only be made after the duly constituted Selection Committee has found the person suitable for such appointment. Dr. P. Sambasiva Rao, though he had been working since 1976, was considered by the Selection Committee for regular appointment in the year 1981 and was not found suitable for such regular appointment. Dr. J. Sanjeeva Kumar and Dr. S. Prasada Rao were never considered by the Selection Committee for regular appointment. The fact that no regular selection has been made after their appointment on ad hoc basis does not mean that they are entitled to be regularised with effect from April 1, 1986. In view of the Rules prescribed by the appellant-Corporation, regularisation of the respondent-medical officers on the post of medical officer can be made only after they are considered and found suitable for such appointment by a duly constituted Selection Committee. As a result of the direction for regularisation given by the High Court, the requirement in the Rules regarding selection by a Selection Committee for the purpose of regular appointment on the post of medical officer has been dispensed with. This, in our opinion, was impermissible.11. The decision in Dr. A.K. Jain and others v. Union of India and others (supra) on which reliance has been placed on behalf of the respondent-medical officers, does not lend any assistance to them.We are, however, not inclined to interfere with the direction given by the High Court for payment of regular pay scales to the respondent-medical officers with effect from April 1, 1986.
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Union of India & Another Vs. R. Gandhi, President, Madras Bar Association & Another | assistance of professional experts, qualified in medicine, engineering, and architecture etc. Lastly, we may refer to the lack of security of tenure. The short term of three years, the provision for routine suspension pending enquiry and the lack of any kind of immunity, are aspects which require be considering and remedying.56. We may now tabulate the defects in Parts IB and IC of the Act :(i) Only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only the High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practiced as a Lawyer for ten years can be considered for appointment as a Judicial Member. Persons who have held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and Indian Legal Service (Grade-1) cannot be considered for appointment as judicial members as provided in sub-section 2(c) and (d) of Section 10FD. The expertise in Company Law service or Indian Legal service will at best enable them to be considered for appointment as technical members.(ii) As the NCLT takes over the functions of High Court, the members should as nearly as possible have the same position and status as High Court Judges. This can be achieved, not by giving the salary and perks of a High Court Judge to the members, but by ensuring that persons who are as nearly equal in rank, experience or competence to High Court Judges are appointed as members. Therefore, only officers who are holding the ranks of Secretaries or Additional Secretaries alone can be considered for appointment as Technical members of the National Company Law Tribunal. Clauses (c) and (d) of sub-section (2) and Clauses (a) and (b) of sub-section (3) of section 10FD which provide for persons with 15 years experience in Group A post or persons holding the post of Joint Secretary or equivalent post in Central or State Government, being qualified for appointment as Members of Tribunal is invalid.(iv) A `Technical Member presupposes an experience in the field to which the Tribunal relates. A member of Indian Company Law Service who has worked with Accounts Branch or officers in other departments who might have incidentally dealt with some aspect of Company Law cannot be considered as `experts qualified to be appointed as Technical Members. Therefore Clauses (a) and (b) of sub-section (3) are not valid.(v) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 15 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as Technical Members in Company Law Tribunal, is invalid.(vi) Persons having ability, integrity, standing and special knowledge and professional experience of not less than fifteen years in industrial finance, industrial management, industrial reconstruction, investment and accountancy, may however be considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being considered for appointment as Technical Members.(vii) In regard to category of persons referred in clause (g) of sub-section (3) at least five years experience should be specified.(viii) Only Clauses (c), (d), (e), (g), (h), and later part of clause (f) in sub- section (3) of section 10FD and officers of civil services of the rank of the Secretary or Additional Secretary in Indian Company Law Service and Indian Legal Service can be considered for purposes of appointment as Technical Members of the Tribunal.(ix) Instead of a five-member Selection Committee with Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members mentioned in section 10FX, the Selection Committee should broadly be on the following lines:(a) Chief Justice of India or his nominee - Chairperson (with a casting vote);(b) A senior Judge of the Supreme Court or Chief Justice of High Court - Member;(c) Secretary in the Ministry of Finance and Company Affairs - Member; and(d) Secretary in the Ministry of Law and Justice - Member.(x) The term of office of three years shall be changed to a term of seven or five years subject to eligibility for appointment for one more term. This is because considerable time is required to achieve expertise in the concerned field. A term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, one term will be over. Further the said term of three years with the retirement age of 65 years is perceived as having been tailor-made for persons who have retired or shortly to retire and encourages these Tribunals to be treated as post-retirement havens. If these Tribunals are to function effectively and efficiently they should be able to attract younger members who will have a reasonable period of service.(xi) The second proviso to Section 10FE enabling the President and members to retain lien with their parent cadre/ministry/department while holding office as President or Members will not be conducive for the independence of members. Any person appointed as members should be prepared to totally disassociate himself from the Executive. The lien cannot therefore exceed a period of one year.(xii) To maintain independence and security in service, sub-section (3) of section 10FJ and Section 10FV should provide that suspension of the President/Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India.(xiii) The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department.(xiv) Two-Member Benches of the Tribunal should always have a judicial member. Whenever any larger or special benches are constituted, the number of Technical Members shall not exceed the Judicial Members. | 1[ds]14. Though both Courts and Tribunals exercise judicial power and discharge similar functions, there are certain well-recognised differences between courts and Tribunals. They are :(i) Courts are established by the State and are entrusted with the States inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all courts are Tribunals. But all Tribunals are not courts.(ii) Courts are exclusively manned by Judges. Tribunals can have a Judge as the sole member, or can have a combination of a Judicial Member and a Technical Member who is an `expert in the field to which Tribunal relates. Some highly specialized fact finding Tribunals may have only Technical Members, but they are rare and are exceptions.(iii) While courts are governed by detailed statutory procedural rules, in particular the Code of Civil Procedure and Evidence Act, requiring an elaborate procedure in decision making, Tribunals generally regulate their own procedure applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of Evidence Act.Impartiality, independence, fairness and reasonableness in decision making are the hallmarks of Judiciary. If `Impartiality is the soul of Judiciary, `Independence is the life blood of Judiciary. Without independence, impartiality cannot thrive. Independence is not the freedom for Judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values. It is also the discipline in life, habits and outlook that enables a Judge to be impartial. Its existence depends however not only on philosophical, ethical or moral aspects but also upon several mundane things - security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the Judiciary) and without (from the Executive).Only if continued judicial independence is assured, Tribunals can discharge judicial functions. In order to make such independence a reality, it is fundamental that the members of the Tribunal shall be independent persons, not civil servants. They should resemble courts and not bureaucratic Boards. Even the dependence of Tribunals on the sponsoring or parent department for infrastructural facilities or personnel may undermine the independence of thepower of Parliament to enact a law which is not covered by an entry in Lists II and III is absolute. The power so conferred by Article 246 is in no way affected or controlled by Article 323 A or 323 B. MBA contends that if the power to enact a law to constitute tribunals was already in existence with reference to the various fields of legislation enumerated in the Seventh Schedule, there was no need for enacting Articles 323A or 323B conferring specific power to Legislatures to make laws for constitution of Tribunals. It is their contention that the very fact that Articles 323A and 323B have been specifically enacted empowering the concerned legislature to make a law constituting tribunals in regard to the matters enumerated therein, demonstrated that tribunals cannot be constituted in respect of matters other than those mentioned in the said Articles 323A and 323B. The contention is not sound. It is evident that Part XIV-A containing Articles 323A and 323B was inserted in the Constitution so as to provide for establishment of tribunals which can exclude the jurisdiction of all courts including the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32, in respect of disputes and complaints covered by those Articles. It was thought that unless such enabling power was vested in the Legislatures by a constitutional provision, it may not be possible to enact laws excluding the jurisdiction of the High Courts and Supreme Court. However, this is now academic because clause 2(d) of Article 323A and clause 3(d) of Article 323B have been held to be unconstitutional in Chandra Kumar.Therefore, even though revival/rehabilitation/regulation/winding up of companies are not matters which are mentioned in Article 323A and 323B, the Parliament has the legislative competence to make a law providing for constitution of Tribunals to deal with disputes and matters arising out of the Companies Act.32. The Constitution contemplates judicial power being exercised by both courts and Tribunals. Except the powers and jurisdictions vested in superior courts by the Constitution, powers and jurisdiction of courts are controlled and regulated by Legislative enactments. High Courts are vested with the jurisdiction to entertain and hear appeals, revisions and references in pursuance of provisions contained in several specific legislative enactments. If jurisdiction of High Courts can be created by providing for appeals, revisions and references to be heard by the High Courts, jurisdiction can also be taken away by deleting the provisions for appeals, revisions or references. It also follows that the legislature has the power to create Tribunals with reference to specific enactments and confer jurisdiction on them to decide disputes in regard to matters arising from such special enactments. Therefore it cannot be said that legislature has no power to transfer judicial functions traditionally performed by courts to Tribunals.33. The argument that there cannot be `whole-sale transfer of powers is misconceived. It is nobodys case that the entire functioning of courts in the country is transferred to Tribunals. The competence of the Parliament to make a law creating Tribunals to deal with disputes arising under or relating to a particular statute or statutes cannot be disputed. When a Tribunal is constituted under the Companies Act, empowered to deal with disputes arising under the said Act and the statute substitutes the word `Tribunal in place of `High Court necessarily there will be `whole-sale transfer of company law matters to the Tribunals. It is an inevitable consequence of creation of Tribunal, for such disputes, and will no way affect the validity of the law creating the Tribunal.But when we say that Legislature has the competence to make laws providing which disputes will be decided by courts and which disputes will be decided by Tribunals, it is subject to constitutional limitations, without encroaching upon the independence of judiciary and keeping in view the principles of Rule of Law and separation of powers. If Tribunals are to be vested with judicial power hitherto vested in or exercised by courts, such Tribunals should possess the independence, security and capacity associated with courts. If the Tribunals are intended to serve an area which requires specialized knowledge or expertise, no doubt there can be Technical Members in addition to Judicial Members. Where however jurisdiction to try certain category of cases are transferred from Courts to Tribunals only to expedite the hearing and disposal or relieve from the rigours of the Evidence Act and procedural laws, there is obviously no need to have any non-judicial Technical Member. In respect of such Tribunals, only members of the Judiciary should be the Presiding Officers/members of such Tribunals. Typical examples of such special Tribunals are Rent Tribunals, Motor Accident Tribunals and Special Courts under several Enactments. Therefore, when transferring the jurisdiction exercised by Courts to Tribunals, which does not involve any specialized knowledge or expertise in any field and expediting the disposal and relaxing the procedure is the only object, a provision for technical members in addition to or in substitution of judicial members would clearly be a case of dilution of and encroachment upon the independence of the Judiciary and Rule of Law and would be unconstitutional.The question is whether a line can be drawn, and who can decide the validity or correctness of such action. The obvious answer is that while the Legislature can make a law providing for constitution of Tribunals and prescribing the eligibility criteria and qualifications for being appointed as members, the superior courts in the country can, in exercise of the power of judicial review, examine whether the qualifications and eligibility criteria provided for selection of members is proper and adequate to enable them to discharge judicial functions and inspire confidence. This issue was also considered in Sampath Kumar (supra) and it was held that where the prescription of qualification was found by the court, to be not proper and conducive for the proper functioning of the Tribunal, it will result in invalidation of the relevant provisions relating to the constitution of the Tribunal. If the qualifications/eligibility criteria for appointment fail to ensure that the members of the Tribunal are able to discharge judicial functions, the said provisions cannot pass the scrutiny of the higher Judiciary.It is now well settled that only constitutional amendments can be subjected to the test of basic features doctrine. Legislative measures are not subjected to basic features or basic structure or basic framework. The Legislation can be declared unconstitutional or invalid only on two grounds namely (i) lack of legislative competence and (ii) violation of any fundamental rights or any provision of the ConstitutionThe fundamental right to equality before law and equal protection of laws guaranteed by Article 14 of the Constitution clearly includes a right to have the persons rights, adjudicated by a forum which exercises judicial power in an impartial and independent manner, consistent with the recognized principles of adjudication. Therefore wherever access to courts to enforce such rights is sought to be abridged, altered, modified or substituted by directing him to approach an alternative forum, such legislative act is open to challenge if it violates the right to adjudication by an independent forum. Therefore, though the challenge by MBA is on the ground of violation of principles forming part of the basic structure, they are relatable to one or more of the express provisions of the Constitution which gave rise to such principles. Though the validity of the provisions of a legislative act cannot be challenged on the ground it violates the basic structure of the constitution, it can be challenged as violative of constitutional provisions which enshrine the principles of Rule of Law, separation of power and independence of Judiciary.We may summarize the position as follows:(a) A legislature can enact a law transferring the jurisdiction exercised by courts in regard to any specified subject (other than those which are vested in courts by express provisions of the Constitution) to any tribunal.(b) All courts are tribunals. Any tribunal to which any existing jurisdiction of courts is transferred should also be a Judicial Tribunal. This means that such Tribunal should have as members, persons of a rank, capacity and status as nearly as possible equal to the rank, status and capacity of the court which was till then dealing with such matters and the members of the Tribunal should have the independence and security of tenure associated with Judicial Tribunals.(c) Whenever there is need for `Tribunals, there is no presumption that there should be technical members in the Tribunals. When any jurisdiction is shifted from courts to Tribunals, on the ground of pendency and delay in courts, and the jurisdiction so transferred does not involve any technical aspects requiring the assistance of experts, the Tribunals should normally have only judicial members. Only where the exercise of jurisdiction involves inquiry and decisions into technical or special aspects, where presence of technical members will be useful and necessary, Tribunals should have technical members. Indiscriminate appointment of technical members in all Tribunals will dilute and adversely affect the independence of the Judiciary.(d) The Legislature can re-organize the jurisdictions of Judicial Tribunals. For example, it can provide that a specified category of cases tried by a higher court can be tried by a lower court or vice versa (A standard example is the variation of pecuniary limits of courts). Similarly while constituting Tribunals, the Legislature can prescribe the qualifications/eligibility criteria. The same is however subject to Judicial Review. If the court in exercise of judicial review is of the view that such tribunalisation would adversely affect the independence of judiciary or the standards of judiciary, the court may interfere to preserve the independence and standards of judiciary. Such an exercise will be part of the checks and balances measures to maintain the separation of powers and to prevent any encroachment, intentional or unintentional, by either the legislature or by the executive.A lifetime of experience in administration may make a member of the civil services a good and able administrator, but not a necessarily good, able and impartial adjudicator with a judicial temperament capable of rendering decisions which have to (i) inform the parties about the reasons for the decision; (ii) demonstrate fairness and correctness of the decision and absence of arbitrariness; and (iii) ensure that justice is not only done, but also seem to be done.As far as the Technical Members are concerned, the officer should be of at least Secretary Level officer with known competence and integrity. Reducing the standards, or qualifications for appointment will result in loss of confidence in the Tribunals. We hasten to add that our intention is not to say that the persons of Joint Secretary level are not competent. Even persons of Under Secretary level may be competent to discharge the functions. There may be brilliant and competent people even working as Section Officers or Upper Division Clerks but that does not mean that they can be appointed as Members. Competence is different from experience, maturity and status required for the post. As, for example, for the post of a Judge of the High Court, 10 years practice as an Advocate is prescribed. There may be Advocates who even with 4 or 5 years experience, may be more brilliant than Advocates with 10 years standing. Still, it is not competence alone but various other factors which make a person suitable. Therefore, when the legislature substitutes the Judges of the High Court with Members of the Tribunal, the standards applicable should be as nearly as equal in the case of High Court Judges. That means only Secretary Level officers (that is those who were Secretaries or Additional Secretaries) with specialized knowledge and skills can be appointed as Technical Members of the Tribunal.There is an erroneous assumption that company law matters require certain specialized skills which are lacking in Judges. There is also an equally erroneous assumption that members of the civil services, (either a Group-A officer or Joint Secretary level civil servant who had never handled any company disputes) will have the judicial experience or expertise in company law to be appointed either as Judicial Member or Technical Member. Nor can persons having experience of fifteen years in science, technology, medicines, banking, and industry can be termed as experts in Company Law for being appointed as Technical Members. The practice of having experts as Technical Members is suited to areas which require the assistance of professional experts, qualified in medicine, engineering, and architecture etc. Lastly, we may refer to the lack of security of tenure. The short term of three years, the provision for routine suspension pending enquiry and the lack of any kind of immunity, are aspects which require be considering and remedying.56. We may now tabulate the defects in Parts IB and IC of the Act :(i) Only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only the High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practiced as a Lawyer for ten years can be considered for appointment as a Judicial Member. Persons who have held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and Indian Legal Service (Grade-1) cannot be considered for appointment as judicial members as provided in sub-section 2(c) and (d) of Section 10FD. The expertise in Company Law service or Indian Legal service will at best enable them to be considered for appointment as technical members.(ii) As the NCLT takes over the functions of High Court, the members should as nearly as possible have the same position and status as High Court Judges. This can be achieved, not by giving the salary and perks of a High Court Judge to the members, but by ensuring that persons who are as nearly equal in rank, experience or competence to High Court Judges are appointed as members. Therefore, only officers who are holding the ranks of Secretaries or Additional Secretaries alone can be considered for appointment as Technical members of the National Company Law Tribunal. Clauses (c) and (d) of sub-section (2) and Clauses (a) and (b) of sub-section (3) of section 10FD which provide for persons with 15 years experience in Group A post or persons holding the post of Joint Secretary or equivalent post in Central or State Government, being qualified for appointment as Members of Tribunal is invalid.(iv) A `Technical Member presupposes an experience in the field to which the Tribunal relates. A member of Indian Company Law Service who has worked with Accounts Branch or officers in other departments who might have incidentally dealt with some aspect of Company Law cannot be considered as `experts qualified to be appointed as Technical Members. Therefore Clauses (a) and (b) of sub-section (3) are not valid.(v) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 15 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as Technical Members in Company Law Tribunal, is invalid.(vi) Persons having ability, integrity, standing and special knowledge and professional experience of not less than fifteen years in industrial finance, industrial management, industrial reconstruction, investment and accountancy, may however be considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being considered for appointment as Technical Members.(vii) In regard to category of persons referred in clause (g) of sub-section (3) at least five years experience should be specified.(viii) Only Clauses (c), (d), (e), (g), (h), and later part of clause (f) in sub- section (3) of section 10FD and officers of civil services of the rank of the Secretary or Additional Secretary in Indian Company Law Service and Indian Legal Service can be considered for purposes of appointment as Technical Members of the Tribunal.(ix) Instead of a five-member Selection Committee with Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members mentioned in section 10FX, the Selection Committee should broadly be on the following lines:(a) Chief Justice of India or his nominee - Chairperson (with a casting vote);(b) A senior Judge of the Supreme Court or Chief Justice of High Court - Member;(c) Secretary in the Ministry of Finance and Company Affairs - Member; and(d) Secretary in the Ministry of Law and Justice - Member.(x) The term of office of three years shall be changed to a term of seven or five years subject to eligibility for appointment for one more term. This is because considerable time is required to achieve expertise in the concerned field. A term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, one term will be over. Further the said term of three years with the retirement age of 65 years is perceived as having been tailor-made for persons who have retired or shortly to retire and encourages these Tribunals to be treated as post-retirement havens. If these Tribunals are to function effectively and efficiently they should be able to attract younger members who will have a reasonable period of service.(xi) The second proviso to Section 10FE enabling the President and members to retain lien with their parent cadre/ministry/department while holding office as President or Members will not be conducive for the independence of members. Any person appointed as members should be prepared to totally disassociate himself from the Executive. The lien cannot therefore exceed a period of one year.(xii) To maintain independence and security in service, sub-section (3) of section 10FJ and Section 10FV should provide that suspension of the President/Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India.(xiii) The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department.(xiv) Two-Member Benches of the Tribunal should always have a judicial member. Whenever any larger or special benches are constituted, the number of Technical Members shall not exceed the Judicial Members. | 1 | 25,652 | 3,875 | ### 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:
assistance of professional experts, qualified in medicine, engineering, and architecture etc. Lastly, we may refer to the lack of security of tenure. The short term of three years, the provision for routine suspension pending enquiry and the lack of any kind of immunity, are aspects which require be considering and remedying.56. We may now tabulate the defects in Parts IB and IC of the Act :(i) Only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only the High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practiced as a Lawyer for ten years can be considered for appointment as a Judicial Member. Persons who have held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and Indian Legal Service (Grade-1) cannot be considered for appointment as judicial members as provided in sub-section 2(c) and (d) of Section 10FD. The expertise in Company Law service or Indian Legal service will at best enable them to be considered for appointment as technical members.(ii) As the NCLT takes over the functions of High Court, the members should as nearly as possible have the same position and status as High Court Judges. This can be achieved, not by giving the salary and perks of a High Court Judge to the members, but by ensuring that persons who are as nearly equal in rank, experience or competence to High Court Judges are appointed as members. Therefore, only officers who are holding the ranks of Secretaries or Additional Secretaries alone can be considered for appointment as Technical members of the National Company Law Tribunal. Clauses (c) and (d) of sub-section (2) and Clauses (a) and (b) of sub-section (3) of section 10FD which provide for persons with 15 years experience in Group A post or persons holding the post of Joint Secretary or equivalent post in Central or State Government, being qualified for appointment as Members of Tribunal is invalid.(iv) A `Technical Member presupposes an experience in the field to which the Tribunal relates. A member of Indian Company Law Service who has worked with Accounts Branch or officers in other departments who might have incidentally dealt with some aspect of Company Law cannot be considered as `experts qualified to be appointed as Technical Members. Therefore Clauses (a) and (b) of sub-section (3) are not valid.(v) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 15 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as Technical Members in Company Law Tribunal, is invalid.(vi) Persons having ability, integrity, standing and special knowledge and professional experience of not less than fifteen years in industrial finance, industrial management, industrial reconstruction, investment and accountancy, may however be considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being considered for appointment as Technical Members.(vii) In regard to category of persons referred in clause (g) of sub-section (3) at least five years experience should be specified.(viii) Only Clauses (c), (d), (e), (g), (h), and later part of clause (f) in sub- section (3) of section 10FD and officers of civil services of the rank of the Secretary or Additional Secretary in Indian Company Law Service and Indian Legal Service can be considered for purposes of appointment as Technical Members of the Tribunal.(ix) Instead of a five-member Selection Committee with Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members mentioned in section 10FX, the Selection Committee should broadly be on the following lines:(a) Chief Justice of India or his nominee - Chairperson (with a casting vote);(b) A senior Judge of the Supreme Court or Chief Justice of High Court - Member;(c) Secretary in the Ministry of Finance and Company Affairs - Member; and(d) Secretary in the Ministry of Law and Justice - Member.(x) The term of office of three years shall be changed to a term of seven or five years subject to eligibility for appointment for one more term. This is because considerable time is required to achieve expertise in the concerned field. A term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, one term will be over. Further the said term of three years with the retirement age of 65 years is perceived as having been tailor-made for persons who have retired or shortly to retire and encourages these Tribunals to be treated as post-retirement havens. If these Tribunals are to function effectively and efficiently they should be able to attract younger members who will have a reasonable period of service.(xi) The second proviso to Section 10FE enabling the President and members to retain lien with their parent cadre/ministry/department while holding office as President or Members will not be conducive for the independence of members. Any person appointed as members should be prepared to totally disassociate himself from the Executive. The lien cannot therefore exceed a period of one year.(xii) To maintain independence and security in service, sub-section (3) of section 10FJ and Section 10FV should provide that suspension of the President/Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India.(xiii) The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department.(xiv) Two-Member Benches of the Tribunal should always have a judicial member. Whenever any larger or special benches are constituted, the number of Technical Members shall not exceed the Judicial Members.
### Response:
1
### Explanation:
assistance of professional experts, qualified in medicine, engineering, and architecture etc. Lastly, we may refer to the lack of security of tenure. The short term of three years, the provision for routine suspension pending enquiry and the lack of any kind of immunity, are aspects which require be considering and remedying.56. We may now tabulate the defects in Parts IB and IC of the Act :(i) Only Judges and Advocates can be considered for appointment as Judicial Members of the Tribunal. Only the High Court Judges, or Judges who have served in the rank of a District Judge for at least five years or a person who has practiced as a Lawyer for ten years can be considered for appointment as a Judicial Member. Persons who have held a Group A or equivalent post under the Central or State Government with experience in the Indian Company Law Service (Legal Branch) and Indian Legal Service (Grade-1) cannot be considered for appointment as judicial members as provided in sub-section 2(c) and (d) of Section 10FD. The expertise in Company Law service or Indian Legal service will at best enable them to be considered for appointment as technical members.(ii) As the NCLT takes over the functions of High Court, the members should as nearly as possible have the same position and status as High Court Judges. This can be achieved, not by giving the salary and perks of a High Court Judge to the members, but by ensuring that persons who are as nearly equal in rank, experience or competence to High Court Judges are appointed as members. Therefore, only officers who are holding the ranks of Secretaries or Additional Secretaries alone can be considered for appointment as Technical members of the National Company Law Tribunal. Clauses (c) and (d) of sub-section (2) and Clauses (a) and (b) of sub-section (3) of section 10FD which provide for persons with 15 years experience in Group A post or persons holding the post of Joint Secretary or equivalent post in Central or State Government, being qualified for appointment as Members of Tribunal is invalid.(iv) A `Technical Member presupposes an experience in the field to which the Tribunal relates. A member of Indian Company Law Service who has worked with Accounts Branch or officers in other departments who might have incidentally dealt with some aspect of Company Law cannot be considered as `experts qualified to be appointed as Technical Members. Therefore Clauses (a) and (b) of sub-section (3) are not valid.(v) The first part of clause (f) of sub-section (3) providing that any person having special knowledge or professional experience of 15 years in science, technology, economics, banking, industry could be considered to be persons with expertise in company law, for being appointed as Technical Members in Company Law Tribunal, is invalid.(vi) Persons having ability, integrity, standing and special knowledge and professional experience of not less than fifteen years in industrial finance, industrial management, industrial reconstruction, investment and accountancy, may however be considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being considered for appointment as Technical Members.(vii) In regard to category of persons referred in clause (g) of sub-section (3) at least five years experience should be specified.(viii) Only Clauses (c), (d), (e), (g), (h), and later part of clause (f) in sub- section (3) of section 10FD and officers of civil services of the rank of the Secretary or Additional Secretary in Indian Company Law Service and Indian Legal Service can be considered for purposes of appointment as Technical Members of the Tribunal.(ix) Instead of a five-member Selection Committee with Chief Justice of India (or his nominee) as Chairperson and two Secretaries from the Ministry of Finance and Company Affairs and the Secretary in the Ministry of Labour and Secretary in the Ministry of Law and Justice as members mentioned in section 10FX, the Selection Committee should broadly be on the following lines:(a) Chief Justice of India or his nominee - Chairperson (with a casting vote);(b) A senior Judge of the Supreme Court or Chief Justice of High Court - Member;(c) Secretary in the Ministry of Finance and Company Affairs - Member; and(d) Secretary in the Ministry of Law and Justice - Member.(x) The term of office of three years shall be changed to a term of seven or five years subject to eligibility for appointment for one more term. This is because considerable time is required to achieve expertise in the concerned field. A term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, one term will be over. Further the said term of three years with the retirement age of 65 years is perceived as having been tailor-made for persons who have retired or shortly to retire and encourages these Tribunals to be treated as post-retirement havens. If these Tribunals are to function effectively and efficiently they should be able to attract younger members who will have a reasonable period of service.(xi) The second proviso to Section 10FE enabling the President and members to retain lien with their parent cadre/ministry/department while holding office as President or Members will not be conducive for the independence of members. Any person appointed as members should be prepared to totally disassociate himself from the Executive. The lien cannot therefore exceed a period of one year.(xii) To maintain independence and security in service, sub-section (3) of section 10FJ and Section 10FV should provide that suspension of the President/Chairman or member of a Tribunal can be only with the concurrence of the Chief Justice of India.(xiii) The administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the Tribunals nor its members shall seek or be provided with facilities from the respective sponsoring or parent Ministries or concerned Department.(xiv) Two-Member Benches of the Tribunal should always have a judicial member. Whenever any larger or special benches are constituted, the number of Technical Members shall not exceed the Judicial Members.
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State Bank of India Vs. Nanak Chand Jain | represent him at the departmental enquiry a fresh enquiry was held after withdrawing the order of termination of his services. This fresh enquiry was held on the 21st and 22nd of November, 1956. On this occasion also the enquiry officer found the charges against the respondent proved. After consideration of the report and after giving the respondent an opportunity to show cause why the proposed punishment of termination of his services on payment of three months salary in lieu of notice should not be imposed on him the bank decided in November 1960 to terminate his services by giving him three months salary in lieu of notice in terms of para 521(2)(c) of the Sastry Award.2. As an industrial dispute between the Bank and its employees was pending before the National Industrial Tribunal at this time, the Bank made an application on November 21, 1960 to that Tribunal under S. 33 (2) of the Industrial Disputes Act for approval of its action in terminating the services of the respondent. Before making this application the Bank had informed the respondent by its letter dated November 4, 1960 of its decision to terminate his services and tendered a payment order for Rs. 450.71 being his pay and allowances for three months. The National Industrial Tribunal transferred this application to the Central Government Labour Court at Delhi, for disposal. Resisting this application the respondent contended inter alia that he had not been paid wages for one month as required under the proviso to S. 33(2) and so the application should be dismissed. An application under S. 33A of the industrial Disputes Act was also filed by the respondent before the Central Government Labour Court at Delhi, complaining that the Bank had contravened the provisions of S. 33 by not paying him the one months pay as required under the proviso. This application was resisted by the Bank which contended that the application was not maintainable and the action taken by it was legal and justified. It was urged by the Bank that there had not been any contravention of S. 33(2) as alleged by the employee as three months pay and allowances had been paid. The Labour Court held that payment of three months salary in terms of para 521 (2)(c) of the Sastry Award did not amount to compliance with the requirement of payment of one months wages under the proviso to S. 33 (2). It held accordingly that the application under S. 33A was maintainable and fixed the application for further hearing on other issues on the later date.3. When the application under S. 33(2)(b) of the Industrial Disputes Act that had been filed by the Bank came up for hearing before the Court the Presiding Officer, Mr. Vyas, held himself bound by the decision of his predecessor Mr. Krishnamurthy in the application under S. 33A that there had been contravention of this requirement of payment of one months pay under the proviso. Accordingly, he rejected the Banks application for approval to terminate the services of the respondent. It is against this order that the present appeal has been filed by the Bank by special leave.4. The only question for our consideration is when payment of three months salary has been made in terms of Para 521(2) (c) of the Sastry Award, is it correct to say that the requirement of payment of one months salary under the proviso to S. 33(2) has not been complied with ? On behalf of the Bank it is urged that it is unreasonable to think that three months salary already paid did not include the wages for one month required under the proviso. On the other hand, learned Counsel appearing on behalf of the respondent contends that the payment of three months pay and allowances as provided in para. 521 (2)(c) of the Sastry Award has a different purpose from that of payment of one months wages in the proviso to S. 33(2). In support of this argument he has drawn our attention to the words of the provision as regards his payment in para. 521(2)(c). These words are ". . . . . . . . . . He shall be liable only for termination of service with three months pay and allowances in lieu of notice . . . . . . . . According to the learned Counsel the use of the words "in lieu of notice" in this provision marks the difference in character of the payment provided for in the proviso to S. 33(2) and it is clearly not in lieu of notice. It appears to us that the words "in lieu of notice" in para. 521(2)(c) have not the significance which the learned Counsel attributes to them. We do not think that the Sastry Award intended that the services of such an employee could be terminated by giving him three months notice without paying him three months pay and allowances. Though the words "in lieu of notice" have been used it is clear that three months pay and allowances have to be paid in every such case of termination of service. The object in making this provision appears therefore to be the same as in the proviso viz., to give the employee some monetary assistance. It is difficult to see why therefore three months pay and allowances paid under para. 521 (2)(c) should not be held to include pay for a lesser period as provided under the proviso to S. 33(2).5. In our opinion, the payment for a longer period should be held to include payment for the shorter period and where three months pay and allowances had been paid under the provisions of para. 521(2)(c) no further payment of one months wages under the proviso to S. 33(2) is required.6. We have therefore come to the conclusion that the Labour Court erred in dismissing the Banks application under S. 33(2) on the ground that the requirement for payment of one months wages had not been complied with. | 1[ds]It appears to us that the words "in lieu of notice" in para. 521(2)(c) have not the significance which the learned Counsel attributes to them. We do not think that the Sastry Award intended that the services of such an employee could be terminated by giving him three months notice without paying him three months pay and allowances. Though the words "in lieu of notice" have been used it is clear that three months pay and allowances have to be paid in every such case of termination of service. The object in making this provision appears therefore to be the same as in the proviso viz., to give the employee some monetary assistance. It is difficult to see why therefore three months pay and allowances paid under para. 521 (2)(c) should not be held to include pay for a lesser period as provided under the proviso to S. 33(2).5. In our opinion, the payment for a longer period should be held to include payment for the shorter period and where three months pay and allowances had been paid under the provisions of para. 521(2)(c) no further payment of one months wages under the proviso to S. 33(2) is required.6. We have therefore come to the conclusion that the Labour Court erred in dismissing the Banks application under S. 33(2) on the ground that the requirement for payment of one months wages had not been complied with. | 1 | 1,396 | 283 | ### 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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represent him at the departmental enquiry a fresh enquiry was held after withdrawing the order of termination of his services. This fresh enquiry was held on the 21st and 22nd of November, 1956. On this occasion also the enquiry officer found the charges against the respondent proved. After consideration of the report and after giving the respondent an opportunity to show cause why the proposed punishment of termination of his services on payment of three months salary in lieu of notice should not be imposed on him the bank decided in November 1960 to terminate his services by giving him three months salary in lieu of notice in terms of para 521(2)(c) of the Sastry Award.2. As an industrial dispute between the Bank and its employees was pending before the National Industrial Tribunal at this time, the Bank made an application on November 21, 1960 to that Tribunal under S. 33 (2) of the Industrial Disputes Act for approval of its action in terminating the services of the respondent. Before making this application the Bank had informed the respondent by its letter dated November 4, 1960 of its decision to terminate his services and tendered a payment order for Rs. 450.71 being his pay and allowances for three months. The National Industrial Tribunal transferred this application to the Central Government Labour Court at Delhi, for disposal. Resisting this application the respondent contended inter alia that he had not been paid wages for one month as required under the proviso to S. 33(2) and so the application should be dismissed. An application under S. 33A of the industrial Disputes Act was also filed by the respondent before the Central Government Labour Court at Delhi, complaining that the Bank had contravened the provisions of S. 33 by not paying him the one months pay as required under the proviso. This application was resisted by the Bank which contended that the application was not maintainable and the action taken by it was legal and justified. It was urged by the Bank that there had not been any contravention of S. 33(2) as alleged by the employee as three months pay and allowances had been paid. The Labour Court held that payment of three months salary in terms of para 521 (2)(c) of the Sastry Award did not amount to compliance with the requirement of payment of one months wages under the proviso to S. 33 (2). It held accordingly that the application under S. 33A was maintainable and fixed the application for further hearing on other issues on the later date.3. When the application under S. 33(2)(b) of the Industrial Disputes Act that had been filed by the Bank came up for hearing before the Court the Presiding Officer, Mr. Vyas, held himself bound by the decision of his predecessor Mr. Krishnamurthy in the application under S. 33A that there had been contravention of this requirement of payment of one months pay under the proviso. Accordingly, he rejected the Banks application for approval to terminate the services of the respondent. It is against this order that the present appeal has been filed by the Bank by special leave.4. The only question for our consideration is when payment of three months salary has been made in terms of Para 521(2) (c) of the Sastry Award, is it correct to say that the requirement of payment of one months salary under the proviso to S. 33(2) has not been complied with ? On behalf of the Bank it is urged that it is unreasonable to think that three months salary already paid did not include the wages for one month required under the proviso. On the other hand, learned Counsel appearing on behalf of the respondent contends that the payment of three months pay and allowances as provided in para. 521 (2)(c) of the Sastry Award has a different purpose from that of payment of one months wages in the proviso to S. 33(2). In support of this argument he has drawn our attention to the words of the provision as regards his payment in para. 521(2)(c). These words are ". . . . . . . . . . He shall be liable only for termination of service with three months pay and allowances in lieu of notice . . . . . . . . According to the learned Counsel the use of the words "in lieu of notice" in this provision marks the difference in character of the payment provided for in the proviso to S. 33(2) and it is clearly not in lieu of notice. It appears to us that the words "in lieu of notice" in para. 521(2)(c) have not the significance which the learned Counsel attributes to them. We do not think that the Sastry Award intended that the services of such an employee could be terminated by giving him three months notice without paying him three months pay and allowances. Though the words "in lieu of notice" have been used it is clear that three months pay and allowances have to be paid in every such case of termination of service. The object in making this provision appears therefore to be the same as in the proviso viz., to give the employee some monetary assistance. It is difficult to see why therefore three months pay and allowances paid under para. 521 (2)(c) should not be held to include pay for a lesser period as provided under the proviso to S. 33(2).5. In our opinion, the payment for a longer period should be held to include payment for the shorter period and where three months pay and allowances had been paid under the provisions of para. 521(2)(c) no further payment of one months wages under the proviso to S. 33(2) is required.6. We have therefore come to the conclusion that the Labour Court erred in dismissing the Banks application under S. 33(2) on the ground that the requirement for payment of one months wages had not been complied with.
### Response:
1
### Explanation:
It appears to us that the words "in lieu of notice" in para. 521(2)(c) have not the significance which the learned Counsel attributes to them. We do not think that the Sastry Award intended that the services of such an employee could be terminated by giving him three months notice without paying him three months pay and allowances. Though the words "in lieu of notice" have been used it is clear that three months pay and allowances have to be paid in every such case of termination of service. The object in making this provision appears therefore to be the same as in the proviso viz., to give the employee some monetary assistance. It is difficult to see why therefore three months pay and allowances paid under para. 521 (2)(c) should not be held to include pay for a lesser period as provided under the proviso to S. 33(2).5. In our opinion, the payment for a longer period should be held to include payment for the shorter period and where three months pay and allowances had been paid under the provisions of para. 521(2)(c) no further payment of one months wages under the proviso to S. 33(2) is required.6. We have therefore come to the conclusion that the Labour Court erred in dismissing the Banks application under S. 33(2) on the ground that the requirement for payment of one months wages had not been complied with.
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Controller of Estate Duty, Gujarat Vs. H. H. Iqbal Mohomed Khan, Nawab of Palanpur | reference, and so interpreted the sentence means " you will be able to do what you like with your Rs. 9, 00, 000 and, I shall have no worry to discuss your investments ". Having analysed the language of the letter dated May 3, 1955, in its entirety and in its context we are of the opinion that there was merely a proposal or expression of the intention of the deceased to make the gift of the sum of Rs. 9, 00, 000 to the respondent and there was no transfer in praesenti of that amount to the respondent carried out and effected by means of that letter within the meaning of section 130 of the Transfer of Property Act. It follows, therefore, that the transfer of the actionable claim was not completed on May 3, 1955, but the transfer became effective on September 19, 1955, when the deceased signed the draft letter to the Bombay Government requesting it to arrange for the payment of the said sum of Rs. 9, 00, 000 directly to the respondent. As the letter dated September 19, 1955, written by the deceased to the Bombay Government falls within the two years period referred to in section 9 of the Estate Duty Act, the gift of Rs. 9, 00, 000 should be regarded as being chargeable to estate duty and the question of law referred to the High Court must be answered against the respondent and in favour of the Controller of Estate Duty, GujaratOn behalf of the respondent Mr. Bhaba referred to an affidavit of Mr. J. P. Thacker of Messrs. Mulla and Mulla dated December 23, 1959, in which he stated that " some time in May, 1955, I was called by His Late Highness at his residence in Bombay and he told me that he had made a gift to his son Iqbal, the present Nawab of Palanpur, of a sum of Rs. 9 lakhs, out of the sum of Rs. 10 lakhs, being the balance of the purchase price of the said Joravar Palace which was due and payable by the State of Bombay. Learned counsel also referred to the draft of two letters dated May 13, 1955, produced along with the affidavit of Mr. Thacker. But it is admitted for the respondent that the deceased did not sign either of these draft letters on May 13, 1955, but that the letter to the Bombay Government was signed only on September 19, 1955. Mr. Bhaba stressed the argument that the alleged declaration of the deceased made to Mr. Thacker early in May, 1955, was admissible in evidence in the matter of construction of the letter of the deceased dated May 3, 1955. To put it differently, the argument of the respondent was that the alleged declaration of the deceased to Mr. Thacker was made soon after the letter of May 3, 1955, and constituted part of the same transaction and was, therefore, admissible in evidence. In support of this argument learned counsel referred to the decision of the House of Lords in Shephard v. Cartwright , but that decision has no bearing on the question presented for determination in the present case. It was held in that case that subsequent acts of the parties are, in general, inadmissible with regard to the rebuttal of the presumption of advancement but there was an exception that evidence may be add uced in rebuttal in regard to acts, circumstances and declarations leading to or forming part of the transaction or so immediately following or connected with it as in effect to be contemporaneous with or forming part of it. It was pointed out in that case that, as advancement is a question of intention, facts antecedent to or contemporaneous with the purchase, or so immediately after it as to constitute part of the same transaction may be put in evidence for the purpose of rebutting the presumption. The doctrine enunciated in this case has manifestly no application to the question to be decided in the present case. It was then contended by Mr. Bhaba that, if the language of the letter dated May 3, 1955, is ambiguous, evidence is admissible of surrounding circumstances in order to enquire what is the meaning of the language used by the deceased in the doucment. We do not, however, agree that there is any ambiguity in the letter dated May 3, 1955. The question of construing the letter is somewhat difficult, but the problem in this case does not go beyond the sphere of difficult construction into the sphere of ambiguity. The difficulty is purely one of construction and which can and should be overcome. We are, therefore, of the opinion that the subsequent declaration alleged to have been made by the deceased to Mr. Thacker as mentioned in the draft letters and the affidavit is not admissible in the matter of interpretation of the letter dated May 3, 1955. We accordingly reject the argum ent of the respondent on this aspect of the caseAs regards the question whether a part of an actionable claim can be the subject-matter of a gift or not, the view taken by the Central Board of Revenue is that the debt was capable of partition and there was no valid transfer of the sum of Rs. 9, 00, 000 prior to September 19, 1955, when the debt wa s actually partitioned. The High Court, however, has overruled the view of the Central Board of Revenue and held that there is nothing in section 130 of the Transfer of Property Act or any other portion of that Act which prohibits the transfer or gift of a part of an actionable claim and, therefore, such transfer of a part of an actionable claim was permissible in law. It is not, however, necessary for us, in the present appeal, to express any opinion on this aspect of the case or to examine whether the view taken by the High Court on this point is correct | 1[ds]4. It is manifest that this section contains a special scheme which has some of the features both of the English common law and of the principles of equity and it is analogous to the provisions which are contained in section 25(b) of the Judicature Act of 1873, which are now enacted in section 126 of the Law of Property Act of 1925. In other words, the section has some of the features of the statutory and some of the equitable modes of assignment. It resembles an equitable assignment in that it applies to assignments by way of charge as well as to absolute assignments and takes effect as between the assignor and the assignee from the date of the assignment. On the other hand it resembles a statutory assignment in that it must be in writing and that it enables the assignee to sue in his own name and to give a valid discharge7. It isd that an instrument in writing under section 130 of the Transfer of Property Act is not required to be in any particular form. It is not necessary that any particular words should be used to effect the transfer of a debt or any beneficial interest in movable property if the intention to transfer in praesenti is clear from the language usedIt is apparent that the first part of the letter refers to a promise previously made by the deceased to the respondent that he would pay the whole of the unpaid balance, i. e., Rs. 10, 00, 000 in such a way that the income thereof would serve as allowance which was being paid to the respondent by the deceasedIn the present appeal, therefore, the question at issue depends upon the proper interpretation of the letter of the deceased dated May 3, 1955.It is apparent that the first part of the letter refers to a promise previously made by the deceased to the respondent that he would pay the whole of the unpaid balance, i. e., Rs. 10, 00, 000 in such a way that the income thereof would serve as allowance which was being paid to the respondent by the deceasedHaving analysed the language of the letter dated May 3, 1955, in its entirety and in its context we are of the opinion that there was merely a proposal or expression of the intention of the deceased to make the gift of the sum of Rs. 9, 00, 000 to the respondent and there was no transfer in praesenti of that amount to the respondent carried out and effected by means of that letter within the meaning of section 130 of the Transfer of Property Act. It follows, therefore, that the transfer of the actionable claim was not completed on May 3, 1955, but the transfer became effective on September 19, 1955, when the deceased signed the draft letter to the Bombay Government requesting it to arrange for the payment of the said sum of Rs. 9, 00, 000 directly to the respondentIt was then contended by Mr. Bhaba that, if the language of the letter dated May 3, 1955, is ambiguous, evidence is admissible of surrounding circumstances in order to enquire what is the meaning of the language used by the deceased in the doucment. We do not, however, agree that there is any ambiguity in the letter dated May 3,1955.The questionof construing the letter is somewhat difficult, but the problem in this case does not go beyond the sphere of difficult construction into the sphere of ambiguity. The difficulty is purely one of construction and which can and should be overcome. We are, therefore, of the opinion that the subsequent declaration alleged to have been made by the deceased to Mr. Thacker as mentioned in the draft letters and the affidavit is not admissible in the matter of interpretation of the letter dated May 3,1955.We accordingly reject the argum ent of the respondent on this aspect of the caseAs regards the question whether a part of an actionable claim can be ther of a gift or not, the view taken by the Central Board of Revenue is that the debt was capable of partition and there was no valid transfer of the sum of Rs. 9, 00, 000 prior to September 19, 1955, when the debt wa s actually partitionedIt is not, however, necessary for us, in the present appeal, to express any opinion on this aspect of the case or to examine whether the view taken by the High Court on this point is correct | 1 | 3,996 | 821 | ### Instruction:
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reference, and so interpreted the sentence means " you will be able to do what you like with your Rs. 9, 00, 000 and, I shall have no worry to discuss your investments ". Having analysed the language of the letter dated May 3, 1955, in its entirety and in its context we are of the opinion that there was merely a proposal or expression of the intention of the deceased to make the gift of the sum of Rs. 9, 00, 000 to the respondent and there was no transfer in praesenti of that amount to the respondent carried out and effected by means of that letter within the meaning of section 130 of the Transfer of Property Act. It follows, therefore, that the transfer of the actionable claim was not completed on May 3, 1955, but the transfer became effective on September 19, 1955, when the deceased signed the draft letter to the Bombay Government requesting it to arrange for the payment of the said sum of Rs. 9, 00, 000 directly to the respondent. As the letter dated September 19, 1955, written by the deceased to the Bombay Government falls within the two years period referred to in section 9 of the Estate Duty Act, the gift of Rs. 9, 00, 000 should be regarded as being chargeable to estate duty and the question of law referred to the High Court must be answered against the respondent and in favour of the Controller of Estate Duty, GujaratOn behalf of the respondent Mr. Bhaba referred to an affidavit of Mr. J. P. Thacker of Messrs. Mulla and Mulla dated December 23, 1959, in which he stated that " some time in May, 1955, I was called by His Late Highness at his residence in Bombay and he told me that he had made a gift to his son Iqbal, the present Nawab of Palanpur, of a sum of Rs. 9 lakhs, out of the sum of Rs. 10 lakhs, being the balance of the purchase price of the said Joravar Palace which was due and payable by the State of Bombay. Learned counsel also referred to the draft of two letters dated May 13, 1955, produced along with the affidavit of Mr. Thacker. But it is admitted for the respondent that the deceased did not sign either of these draft letters on May 13, 1955, but that the letter to the Bombay Government was signed only on September 19, 1955. Mr. Bhaba stressed the argument that the alleged declaration of the deceased made to Mr. Thacker early in May, 1955, was admissible in evidence in the matter of construction of the letter of the deceased dated May 3, 1955. To put it differently, the argument of the respondent was that the alleged declaration of the deceased to Mr. Thacker was made soon after the letter of May 3, 1955, and constituted part of the same transaction and was, therefore, admissible in evidence. In support of this argument learned counsel referred to the decision of the House of Lords in Shephard v. Cartwright , but that decision has no bearing on the question presented for determination in the present case. It was held in that case that subsequent acts of the parties are, in general, inadmissible with regard to the rebuttal of the presumption of advancement but there was an exception that evidence may be add uced in rebuttal in regard to acts, circumstances and declarations leading to or forming part of the transaction or so immediately following or connected with it as in effect to be contemporaneous with or forming part of it. It was pointed out in that case that, as advancement is a question of intention, facts antecedent to or contemporaneous with the purchase, or so immediately after it as to constitute part of the same transaction may be put in evidence for the purpose of rebutting the presumption. The doctrine enunciated in this case has manifestly no application to the question to be decided in the present case. It was then contended by Mr. Bhaba that, if the language of the letter dated May 3, 1955, is ambiguous, evidence is admissible of surrounding circumstances in order to enquire what is the meaning of the language used by the deceased in the doucment. We do not, however, agree that there is any ambiguity in the letter dated May 3, 1955. The question of construing the letter is somewhat difficult, but the problem in this case does not go beyond the sphere of difficult construction into the sphere of ambiguity. The difficulty is purely one of construction and which can and should be overcome. We are, therefore, of the opinion that the subsequent declaration alleged to have been made by the deceased to Mr. Thacker as mentioned in the draft letters and the affidavit is not admissible in the matter of interpretation of the letter dated May 3, 1955. We accordingly reject the argum ent of the respondent on this aspect of the caseAs regards the question whether a part of an actionable claim can be the subject-matter of a gift or not, the view taken by the Central Board of Revenue is that the debt was capable of partition and there was no valid transfer of the sum of Rs. 9, 00, 000 prior to September 19, 1955, when the debt wa s actually partitioned. The High Court, however, has overruled the view of the Central Board of Revenue and held that there is nothing in section 130 of the Transfer of Property Act or any other portion of that Act which prohibits the transfer or gift of a part of an actionable claim and, therefore, such transfer of a part of an actionable claim was permissible in law. It is not, however, necessary for us, in the present appeal, to express any opinion on this aspect of the case or to examine whether the view taken by the High Court on this point is correct
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4. It is manifest that this section contains a special scheme which has some of the features both of the English common law and of the principles of equity and it is analogous to the provisions which are contained in section 25(b) of the Judicature Act of 1873, which are now enacted in section 126 of the Law of Property Act of 1925. In other words, the section has some of the features of the statutory and some of the equitable modes of assignment. It resembles an equitable assignment in that it applies to assignments by way of charge as well as to absolute assignments and takes effect as between the assignor and the assignee from the date of the assignment. On the other hand it resembles a statutory assignment in that it must be in writing and that it enables the assignee to sue in his own name and to give a valid discharge7. It isd that an instrument in writing under section 130 of the Transfer of Property Act is not required to be in any particular form. It is not necessary that any particular words should be used to effect the transfer of a debt or any beneficial interest in movable property if the intention to transfer in praesenti is clear from the language usedIt is apparent that the first part of the letter refers to a promise previously made by the deceased to the respondent that he would pay the whole of the unpaid balance, i. e., Rs. 10, 00, 000 in such a way that the income thereof would serve as allowance which was being paid to the respondent by the deceasedIn the present appeal, therefore, the question at issue depends upon the proper interpretation of the letter of the deceased dated May 3, 1955.It is apparent that the first part of the letter refers to a promise previously made by the deceased to the respondent that he would pay the whole of the unpaid balance, i. e., Rs. 10, 00, 000 in such a way that the income thereof would serve as allowance which was being paid to the respondent by the deceasedHaving analysed the language of the letter dated May 3, 1955, in its entirety and in its context we are of the opinion that there was merely a proposal or expression of the intention of the deceased to make the gift of the sum of Rs. 9, 00, 000 to the respondent and there was no transfer in praesenti of that amount to the respondent carried out and effected by means of that letter within the meaning of section 130 of the Transfer of Property Act. It follows, therefore, that the transfer of the actionable claim was not completed on May 3, 1955, but the transfer became effective on September 19, 1955, when the deceased signed the draft letter to the Bombay Government requesting it to arrange for the payment of the said sum of Rs. 9, 00, 000 directly to the respondentIt was then contended by Mr. Bhaba that, if the language of the letter dated May 3, 1955, is ambiguous, evidence is admissible of surrounding circumstances in order to enquire what is the meaning of the language used by the deceased in the doucment. We do not, however, agree that there is any ambiguity in the letter dated May 3,1955.The questionof construing the letter is somewhat difficult, but the problem in this case does not go beyond the sphere of difficult construction into the sphere of ambiguity. The difficulty is purely one of construction and which can and should be overcome. We are, therefore, of the opinion that the subsequent declaration alleged to have been made by the deceased to Mr. Thacker as mentioned in the draft letters and the affidavit is not admissible in the matter of interpretation of the letter dated May 3,1955.We accordingly reject the argum ent of the respondent on this aspect of the caseAs regards the question whether a part of an actionable claim can be ther of a gift or not, the view taken by the Central Board of Revenue is that the debt was capable of partition and there was no valid transfer of the sum of Rs. 9, 00, 000 prior to September 19, 1955, when the debt wa s actually partitionedIt is not, however, necessary for us, in the present appeal, to express any opinion on this aspect of the case or to examine whether the view taken by the High Court on this point is correct
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State Of Karnataka Vs. Saveen Kumar Shetty | the deposit of security under Rule 17(1)(b). It is for these defaults that the impugned order of 1st June, 2000, was passed cancelling the bid of the respondent. 14. The High Court on a construction of the Rules came to the conclusion that while forfeiture was mandatory under Rule 13(2) the same was not the consequence which would follow on an interpretation of Rule 18. According to the High Court, the Government had the discretion whether to exercise the right of forfeiture or not under the said Rule 18. 15. In our opinion, the High Court erred in coming to the aforesaid conclusion. Rule 13(2) is in two parts. It first deals with the situation where a deposit is required to be made under sub-rule (1) is not made. Rule 13(2) provides that in such an event the tender, offer or bid shall stand cancelled and the earnest money shall be forfeited. Therefore, the non-deposit results in automatic cancellation and forfeiture, but the authorities have the right at that time to either provisionally accept the next highest bid or offer or to dispose of the right of retail vend of liquors afresh. Where however, the deposit under Rule 13(1) has been made, the question of exercising right under Rule 13(2) does not arise. But in the event of failure of complying with the provisions of Rules 16 and 17, the Government under Rule 18 has a discretion whether to cancel the bid or not. But once it is cancelled, Rule 18(1) provides that "the deposit made by such person shall be liable to be forfeited to the State Government".16. In the instant case, within 15 days of the confirmation, the respondent was under an obligation to make the deposit under Rule 17(1)(b) and also execute the lease deed under Rule 16. When the respondent failed to do so, the Government under the first part of Rule 18(1) exercised the jurisdiction in not cancelling the bid but extended the temporary licence. When there was further default and non-compliance with Rules 16 and 17, it is only thereafter that the Government exercised its discretion in cancelling the bid by its order dated 14th October, 1999. Once the bid was cancelled, then the latter part of Rule 18(1) comes into play and the deposit made by such person was liable to be forfeited. Nothing more was required to be done.17. A Constitution Bench of this Court in Indo-China Steam Navigation Co. Ltd. vs. Jasjit Singh, Additional Collector of Customs & Ors. [1964(6) SCR 595] was required to construe the phrase "shall be liable to confiscation" occurring in Section 167(12A) of the Sea Customs Act, 1878 (No. of 1878). It came to the conclusion that once an offence had been committed the vessel had to be confiscated and there was no discretion with the Adjudicating Officer in this behalf. In other words, such a phrase indicated that confiscation was a statutory corollary in the event of contravention of Section 52A and that it was not open to the Customs Authorities not to confiscate the vessel. To the same effect are the two other decisions of this Court in Superintendent and Remembrancer of Legal Affairs to Government of West Bengal vs. Abani Maity [1979 (4) SCC 85 ] and Chern Taong Shang & Ors. vs. Commander S.D. Baijal and Ors. [1988(1) SCC 507].18. Somewhat contrary view has been expressed by a Two Judges Bench of this Court in State of M.P. vs. Azad Bharat Finance Company & Anr. [1966 Suppl. SCR 473] . Dealing with the provisions of Section 11 of the (Madhya Bharat Amendment) Act, the Court came to the conclusion that where there was a truck found carrying opium, then confiscation of the same was not mandatory, though the said Section 11 had used an expression "shall be confiscated". As pointed out by this Court in Abani Maity’s case (supra), what appears to have influenced the decision in Azad Bharat Finance Co.’s case was the fact that the owner of the truck was not even aware that the same was being used for transporting opium. It is also to be seen that the attention of the Court in Azad Bharat Finance Co.’s case was apparently not drawn to the binding decision of the Constitution Bench in Indo-China’s case which was followed as a precedent in the subsequent decisions - Abani Maity and Chern Taong Shang & Ors. (supra).19. It can, therefore, be said to be settled law that where the expression used is "shall be liable to confiscation" it means that there is no discretion with the Adjudicating Authority but to impose such a penalty. Where, however, the option is given like in Abani Maity’s case under Section 64 of the Bengal Excise Act, 1909, either to order confiscation or give the owner of the vehicle an option to pay fine in lieu of confiscation, then that is the only discretion which is available with the Magistrate. The Magistrate could not waive the penalty completely. He either has to order confiscation under Section 83 read with Section 64 or in lieu of confiscation impose such fine as he thought fit. Once an offence was established, one of the two consequences contemplated by Section 64 had to follow.10. On the interpretation of Rule 18 in the instant case, it is clear that once a discretion has been exercised by the Government under Rule 18 to cancel the bid then a forfeiture of the amounts deposited is a consequence to the said act of cancellation and there is no discretion in the Government whether to exercise the right of forfeiture or not. This being so, the question of affording an opportunity to the respondent before effecting the forfeiture cannot arise. Opportunity was granted before cancelling the bid. Admittedly, there was a default in non-compliance with the provisions of Rules 16 and 17. This being so, the appellant-State was right in its decision to cancel the bid and to forfeit the amount deposited under Rule 13(1). | 1[ds]7. In the instant case, the licences were to be given by auction held under Rule 11 of the said Rules. The said Rule contemplates that the intending bidders in respect of each shop or group of shops are to beand, if they are not otherwise disqualified, they can take part in the auction. Each bid which is given is to be signed and the bid is not allowed to be withdrawn. Under(7) of Rule 11 the Deputy Commissioner or the Divisional Commissioner after recording the bids is to provisionally accept the highest bid and make the said announcement.8. It is not in dispute that in the instant case the highest bid of the respondent was provisionally accepted under(7) of Rule 11.It is not in dispute that there were two defaults committed by the respondent in the instant case. Firstly, it did not execute the lease deed under Rule 16 and secondly it did not make the deposit of security under Rule 17(1)(b). It is for these defaults that the impugned order of 1st June, 2000, was passed cancelling the bid of the respondent.In our opinion, the High Court erred in coming to the aforesaid conclusion. Rule 13(2) is in two parts. It first deals with the situation where a deposit is required to be made under(1) is not made. Rule 13(2) provides that in such an event the tender, offer or bid shall stand cancelled and the earnest money shall be forfeited. Therefore, theresults in automatic cancellation and forfeiture, but the authorities have the right at that time to either provisionally accept the next highest bid or offer or to dispose of the right of retail vend of liquors afresh. Where however, the deposit under Rule 13(1) has been made, the question of exercising right under Rule 13(2) does not arise. But in the event of failure of complying with the provisions of Rules 16 and 17, the Government under Rule 18 has a discretion whether to cancel the bid or not. But once it is cancelled, Rule 18(1) provides that "the deposit made by such person shall be liable to be forfeited to the State Government".16. In the instant case, within 15 days of the confirmation, the respondent was under an obligation to make the deposit under Rule 17(1)(b) and also execute the lease deed under Rule 16. When the respondent failed to do so, the Government under the first part of Rule 18(1) exercised the jurisdiction in not cancelling the bid but extended the temporary licence. When there was further default andwith Rules 16 and 17, it is only thereafter that the Government exercised its discretion in cancelling the bid by its order dated 14th October, 1999. Once the bid was cancelled, then the latter part of Rule 18(1) comes into play and the deposit made by such person was liable to be forfeited. Nothing more was required to be done.17. A Constitution Bench of this Court inSteam Navigation Co. Ltd. vs. Jasjit Singh, Additional Collector of Customs & Ors. [1964(6) SCR 595] was required to construe the phrase "shall be liable to confiscation" occurring in Section 167(12A) of the Sea Customs Act, 1878 (No. of 1878). It came to the conclusion that once an offence had been committed the vessel had to be confiscated and there was no discretion with the Adjudicating Officer in this behalf. In other words, such a phrase indicated that confiscation was a statutory corollary in the event of contravention of Section 52A and that it was not open to the Customs Authorities not to confiscate the vessel. To the same effect are the two other decisions of this Court in Superintendent and Remembrancer of Legal Affairs to Government of West Bengal vs. Abani Maity [1979 (4) SCC 85 ] and Chern Taong Shang & Ors. vs. Commander S.D. Baijal and Ors. [1988(1) SCC 507].18. Somewhat contrary view has been expressed by a Two Judges Bench of this Court in State of M.P. vs. Azad Bharat Finance Company & Anr. [1966 Suppl. SCR 473] . Dealing with the provisions of Section 11 of the (Madhya Bharat Amendment) Act, the Court came to the conclusion that where there was a truck found carrying opium, then confiscation of the same was not mandatory, though the said Section 11 had used an expression "shall be confiscated". As pointed out by this Court in Abanicase (supra), what appears to have influenced the decision in Azad Bharat Financecase was the fact that the owner of the truck was not even aware that the same was being used for transporting opium. It is also to be seen that the attention of the Court in Azad Bharat Financecase was apparently not drawn to the binding decision of the Constitution Bench incase which was followed as a precedent in the subsequent decisionsAbani Maity and Chern Taong Shang & Ors. (supra).19. It can, therefore, be said to be settled law that where the expression used is "shall be liable to confiscation" it means that there is no discretion with the Adjudicating Authority but to impose such a penalty. Where, however, the option is given like in Abanicase under Section 64 of the Bengal Excise Act, 1909, either to order confiscation or give the owner of the vehicle an option to pay fine in lieu of confiscation, then that is the only discretion which is available with the Magistrate. The Magistrate could not waive the penalty completely. He either has to order confiscation under Section 83 read with Section 64 or in lieu of confiscation impose such fine as he thought fit. Once an offence was established, one of the two consequences contemplated by Section 64 had to follow.10. On the interpretation of Rule 18 in the instant case, it is clear that once a discretion has been exercised by the Government under Rule 18 to cancel the bid then a forfeiture of the amounts deposited is a consequence to the said act of cancellation and there is no discretion in the Government whether to exercise the right of forfeiture or not. This being so, the question of affording an opportunity to the respondent before effecting the forfeiture cannot arise. Opportunity was granted before cancelling the bid. Admittedly, there was a default inwith the provisions of Rules 16 and 17. This being so, thewas right in its decision to cancel the bid and to forfeit the amount deposited under Rule 13(1). | 1 | 2,679 | 1,242 | ### Instruction:
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the deposit of security under Rule 17(1)(b). It is for these defaults that the impugned order of 1st June, 2000, was passed cancelling the bid of the respondent. 14. The High Court on a construction of the Rules came to the conclusion that while forfeiture was mandatory under Rule 13(2) the same was not the consequence which would follow on an interpretation of Rule 18. According to the High Court, the Government had the discretion whether to exercise the right of forfeiture or not under the said Rule 18. 15. In our opinion, the High Court erred in coming to the aforesaid conclusion. Rule 13(2) is in two parts. It first deals with the situation where a deposit is required to be made under sub-rule (1) is not made. Rule 13(2) provides that in such an event the tender, offer or bid shall stand cancelled and the earnest money shall be forfeited. Therefore, the non-deposit results in automatic cancellation and forfeiture, but the authorities have the right at that time to either provisionally accept the next highest bid or offer or to dispose of the right of retail vend of liquors afresh. Where however, the deposit under Rule 13(1) has been made, the question of exercising right under Rule 13(2) does not arise. But in the event of failure of complying with the provisions of Rules 16 and 17, the Government under Rule 18 has a discretion whether to cancel the bid or not. But once it is cancelled, Rule 18(1) provides that "the deposit made by such person shall be liable to be forfeited to the State Government".16. In the instant case, within 15 days of the confirmation, the respondent was under an obligation to make the deposit under Rule 17(1)(b) and also execute the lease deed under Rule 16. When the respondent failed to do so, the Government under the first part of Rule 18(1) exercised the jurisdiction in not cancelling the bid but extended the temporary licence. When there was further default and non-compliance with Rules 16 and 17, it is only thereafter that the Government exercised its discretion in cancelling the bid by its order dated 14th October, 1999. Once the bid was cancelled, then the latter part of Rule 18(1) comes into play and the deposit made by such person was liable to be forfeited. Nothing more was required to be done.17. A Constitution Bench of this Court in Indo-China Steam Navigation Co. Ltd. vs. Jasjit Singh, Additional Collector of Customs & Ors. [1964(6) SCR 595] was required to construe the phrase "shall be liable to confiscation" occurring in Section 167(12A) of the Sea Customs Act, 1878 (No. of 1878). It came to the conclusion that once an offence had been committed the vessel had to be confiscated and there was no discretion with the Adjudicating Officer in this behalf. In other words, such a phrase indicated that confiscation was a statutory corollary in the event of contravention of Section 52A and that it was not open to the Customs Authorities not to confiscate the vessel. To the same effect are the two other decisions of this Court in Superintendent and Remembrancer of Legal Affairs to Government of West Bengal vs. Abani Maity [1979 (4) SCC 85 ] and Chern Taong Shang & Ors. vs. Commander S.D. Baijal and Ors. [1988(1) SCC 507].18. Somewhat contrary view has been expressed by a Two Judges Bench of this Court in State of M.P. vs. Azad Bharat Finance Company & Anr. [1966 Suppl. SCR 473] . Dealing with the provisions of Section 11 of the (Madhya Bharat Amendment) Act, the Court came to the conclusion that where there was a truck found carrying opium, then confiscation of the same was not mandatory, though the said Section 11 had used an expression "shall be confiscated". As pointed out by this Court in Abani Maity’s case (supra), what appears to have influenced the decision in Azad Bharat Finance Co.’s case was the fact that the owner of the truck was not even aware that the same was being used for transporting opium. It is also to be seen that the attention of the Court in Azad Bharat Finance Co.’s case was apparently not drawn to the binding decision of the Constitution Bench in Indo-China’s case which was followed as a precedent in the subsequent decisions - Abani Maity and Chern Taong Shang & Ors. (supra).19. It can, therefore, be said to be settled law that where the expression used is "shall be liable to confiscation" it means that there is no discretion with the Adjudicating Authority but to impose such a penalty. Where, however, the option is given like in Abani Maity’s case under Section 64 of the Bengal Excise Act, 1909, either to order confiscation or give the owner of the vehicle an option to pay fine in lieu of confiscation, then that is the only discretion which is available with the Magistrate. The Magistrate could not waive the penalty completely. He either has to order confiscation under Section 83 read with Section 64 or in lieu of confiscation impose such fine as he thought fit. Once an offence was established, one of the two consequences contemplated by Section 64 had to follow.10. On the interpretation of Rule 18 in the instant case, it is clear that once a discretion has been exercised by the Government under Rule 18 to cancel the bid then a forfeiture of the amounts deposited is a consequence to the said act of cancellation and there is no discretion in the Government whether to exercise the right of forfeiture or not. This being so, the question of affording an opportunity to the respondent before effecting the forfeiture cannot arise. Opportunity was granted before cancelling the bid. Admittedly, there was a default in non-compliance with the provisions of Rules 16 and 17. This being so, the appellant-State was right in its decision to cancel the bid and to forfeit the amount deposited under Rule 13(1).
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to be withdrawn. Under(7) of Rule 11 the Deputy Commissioner or the Divisional Commissioner after recording the bids is to provisionally accept the highest bid and make the said announcement.8. It is not in dispute that in the instant case the highest bid of the respondent was provisionally accepted under(7) of Rule 11.It is not in dispute that there were two defaults committed by the respondent in the instant case. Firstly, it did not execute the lease deed under Rule 16 and secondly it did not make the deposit of security under Rule 17(1)(b). It is for these defaults that the impugned order of 1st June, 2000, was passed cancelling the bid of the respondent.In our opinion, the High Court erred in coming to the aforesaid conclusion. Rule 13(2) is in two parts. It first deals with the situation where a deposit is required to be made under(1) is not made. Rule 13(2) provides that in such an event the tender, offer or bid shall stand cancelled and the earnest money shall be forfeited. Therefore, theresults in automatic cancellation and forfeiture, but the authorities have the right at that time to either provisionally accept the next highest bid or offer or to dispose of the right of retail vend of liquors afresh. Where however, the deposit under Rule 13(1) has been made, the question of exercising right under Rule 13(2) does not arise. But in the event of failure of complying with the provisions of Rules 16 and 17, the Government under Rule 18 has a discretion whether to cancel the bid or not. But once it is cancelled, Rule 18(1) provides that "the deposit made by such person shall be liable to be forfeited to the State Government".16. In the instant case, within 15 days of the confirmation, the respondent was under an obligation to make the deposit under Rule 17(1)(b) and also execute the lease deed under Rule 16. When the respondent failed to do so, the Government under the first part of Rule 18(1) exercised the jurisdiction in not cancelling the bid but extended the temporary licence. When there was further default andwith Rules 16 and 17, it is only thereafter that the Government exercised its discretion in cancelling the bid by its order dated 14th October, 1999. Once the bid was cancelled, then the latter part of Rule 18(1) comes into play and the deposit made by such person was liable to be forfeited. Nothing more was required to be done.17. A Constitution Bench of this Court inSteam Navigation Co. Ltd. vs. Jasjit Singh, Additional Collector of Customs & Ors. [1964(6) SCR 595] was required to construe the phrase "shall be liable to confiscation" occurring in Section 167(12A) of the Sea Customs Act, 1878 (No. of 1878). It came to the conclusion that once an offence had been committed the vessel had to be confiscated and there was no discretion with the Adjudicating Officer in this behalf. In other words, such a phrase indicated that confiscation was a statutory corollary in the event of contravention of Section 52A and that it was not open to the Customs Authorities not to confiscate the vessel. To the same effect are the two other decisions of this Court in Superintendent and Remembrancer of Legal Affairs to Government of West Bengal vs. Abani Maity [1979 (4) SCC 85 ] and Chern Taong Shang & Ors. vs. Commander S.D. Baijal and Ors. [1988(1) SCC 507].18. Somewhat contrary view has been expressed by a Two Judges Bench of this Court in State of M.P. vs. Azad Bharat Finance Company & Anr. [1966 Suppl. SCR 473] . Dealing with the provisions of Section 11 of the (Madhya Bharat Amendment) Act, the Court came to the conclusion that where there was a truck found carrying opium, then confiscation of the same was not mandatory, though the said Section 11 had used an expression "shall be confiscated". As pointed out by this Court in Abanicase (supra), what appears to have influenced the decision in Azad Bharat Financecase was the fact that the owner of the truck was not even aware that the same was being used for transporting opium. It is also to be seen that the attention of the Court in Azad Bharat Financecase was apparently not drawn to the binding decision of the Constitution Bench incase which was followed as a precedent in the subsequent decisionsAbani Maity and Chern Taong Shang & Ors. (supra).19. It can, therefore, be said to be settled law that where the expression used is "shall be liable to confiscation" it means that there is no discretion with the Adjudicating Authority but to impose such a penalty. Where, however, the option is given like in Abanicase under Section 64 of the Bengal Excise Act, 1909, either to order confiscation or give the owner of the vehicle an option to pay fine in lieu of confiscation, then that is the only discretion which is available with the Magistrate. The Magistrate could not waive the penalty completely. He either has to order confiscation under Section 83 read with Section 64 or in lieu of confiscation impose such fine as he thought fit. Once an offence was established, one of the two consequences contemplated by Section 64 had to follow.10. On the interpretation of Rule 18 in the instant case, it is clear that once a discretion has been exercised by the Government under Rule 18 to cancel the bid then a forfeiture of the amounts deposited is a consequence to the said act of cancellation and there is no discretion in the Government whether to exercise the right of forfeiture or not. This being so, the question of affording an opportunity to the respondent before effecting the forfeiture cannot arise. Opportunity was granted before cancelling the bid. Admittedly, there was a default inwith the provisions of Rules 16 and 17. This being so, thewas right in its decision to cancel the bid and to forfeit the amount deposited under Rule 13(1).
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State of Assam & Another Vs. Daksha Prasad Deka & Others | of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Art. 311 (2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record.5. It is true that the State authorities did not give to the respondent an opportunity to support his case that he was born on August 1, 1911, and that the service record was erroneous. But in view of S. R. 8 Note, which governed the employment of the respondent an application for correction of the service record could not be entertained if it was made within three years before the date of "actual superannuation". S. R. 8 Note provides:"No alteration in the date of birth of a Government servant should be allowed except in very rare cases where a manifest mistake has been made. Such mistakes should be rectified at the earliest opportunity in the course of (1) periodical re-attestation of the entries in the first page of service book, and (2) preparation of the annual detailed statement of a permanent establishment (Financial Rule Form No. II) in which is noted the date of incumbents birth. In no case the request for change in the date of birth of a Government servant made on a date within three years of the date of his actual superannuation should be entertained."Validity of the Rule is not challenged by the respondent. We are unable to agree with the view of the High Court that the date of "actual superannuation" within the meaning of S. R. 8 Note is the date of superannuation computed with reference to the claim made by the public servant, and not with reference to the date as entered in the service record. If such an interpretation be accepted, S. R. 8 Note would prove in a majority of cases of no practical utility. It is intended by S. R. 8 Note that any error in the service record shall be rectified at the earliest opportunity and in no case should an application for rectification be entertained within three years of the "date of actual superannuation i.e. the date of superannuation according to the service record.6. Again, if the contention of the respondent were correct, on the date on which he entered service he was a minor. If on a representation that he had attained the age of ma majority on the date on which he entered service, it would not be open for him after being admitted to the service, to contend that under the appropriate service rules he could not have been admitted to the service, but for the misrepresentation made by him.7. Counsel for the respondent relied upon the judgment of this Court in State of Orissa v Dr. (Miss) Binapani Dei, (1967) 2 SCR 625 = (AIR 1967 SC 1269 ) in support of the contention that a public servant must be given an opportunity to prove his true date of birth before he is superannuated, and any order passed without such opportunity is illegal In our judgment Dr. (Miss) Binapanis case, (1967) 2 SCR 625 - (AIR l967 SC 1269) enunciates no such proposition In that case in the service record of a public servant, April 10, 1910 was entered as the date of her birth. An enquiry was held and the public servant was required to show cause why her date of birth should not be accepted as April 4, 1907 Thereafter the Government of Orissa determined her date of birth as April 16, 1907, and declared that she should be deemed to have been superannuated on April 16, 1962. This order was challenged by the public servant in a petition to the High Court of Orissa. The High Court held that the order of the State Government amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to removal within the meaning of Art. 311 of the Constitution, and since she was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to her, the order was invalid This Court confirmed the order passed by the High Court of Orissa It was observed by this Court that even an administrative order which involved civil consequences must be made consistently with the rules of natural justice The person concerned must be informed of the case of the State and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken The public servant according to the service record could not be superannuated before April 10, 1965. But by an enquiry which was not held in a manner consistent with the rules of natural justice an order was made altering the date of birth as entered in the service record, and declaring that she was born in 1907 That was plainly an order passed to the prejudice of the public servant without giving an opportunity to meet the case of the State In the present case, however, the State did not seek to modify the service record: it was the respondent who sought modification of the service record and claimed that he be declared superannuated only on the basis of the rectification prayed for by him It is true that ordinarily when an application is made for rectification of age by a public servant concerned, the State should give the applicant proper opportunity to prove his case and should give due consideration to the evidence brought before it But in the present case, since the application for rectification was made within three years of the date of actual superannuation, according to S. R. 8 Note the application could not be entertained. The principle of Dr. (Miss) Binapanis case, (1967) 2 SCR 625 = (AIR 1967 SC 1269 ) has not application to this case. | 1[ds]5. It is true that the State authorities did not give to the respondent an opportunity to support his case that he was born on August 1, 1911, and that the service record was erroneous. But in view of S. R. 8 Note, which governed the employment of the respondent an application for correction of the service record could not be entertained if it was made within three years before the date of "actualof the Rule is not challenged by the respondent. We are unable to agree with the view of the High Court that the date of "actual superannuation" within the meaning of S. R. 8 Note is the date of superannuation computed with reference to the claim made by the public servant, and not with reference to the date as entered in the service record. If such an interpretation be accepted, S. R. 8 Note would prove in a majority of cases of no practical utility. It is intended by S. R. 8 Note that any error in the service record shall be rectified at the earliest opportunity and in no case should an application for rectification be entertained within three years of the "date of actual superannuation i.e. the date of superannuation according to the service record.enquiry was held and the public servant was required to show cause why her date of birth should not be accepted as April 4, 1907 Thereafter the Government of Orissa determined her date of birth as April 16, 1907, and declared that she should be deemed to have been superannuated on April 16, 1962. This order was challenged by the public servant in a petition to the High Court of Orissa. The High Court held that the order of the State Government amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to removal within the meaning of Art. 311 of the Constitution, and since she was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to her, the order was invalid This Court confirmed the order passed by the High Court of Orissa It was observed by this Court that even an administrative order which involved civil consequences must be made consistently with the rules of natural justice The person concerned must be informed of the case of the State and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken The public servant according to the service record could not be superannuated before April 10, 1965. But by an enquiry which was not held in a manner consistent with the rules of natural justice an order was made altering the date of birth as entered in the service record, and declaring that she was born in 1907 That was plainly an order passed to the prejudice of the public servant without giving an opportunity to meet the case of the State In the present case, however, the State did not seek to modify the service record: it was the respondent who sought modification of the service record and claimed that he be declared superannuated only on the basis of the rectification prayed for by him It is true that ordinarily when an application is made for rectification of age by a public servant concerned, the State should give the applicant proper opportunity to prove his case and should give due consideration to the evidence brought before it But in the present case, since the application for rectification was made within three years of the date of actual superannuation, according to S. R. 8 Note the application could not be entertained. The principle of Dr. (Miss) Binapanis case, (1967) 2 SCR 625 = (AIR 1967 SC 1269 ) has not application to this case. | 1 | 1,546 | 692 | ### Instruction:
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of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Art. 311 (2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record.5. It is true that the State authorities did not give to the respondent an opportunity to support his case that he was born on August 1, 1911, and that the service record was erroneous. But in view of S. R. 8 Note, which governed the employment of the respondent an application for correction of the service record could not be entertained if it was made within three years before the date of "actual superannuation". S. R. 8 Note provides:"No alteration in the date of birth of a Government servant should be allowed except in very rare cases where a manifest mistake has been made. Such mistakes should be rectified at the earliest opportunity in the course of (1) periodical re-attestation of the entries in the first page of service book, and (2) preparation of the annual detailed statement of a permanent establishment (Financial Rule Form No. II) in which is noted the date of incumbents birth. In no case the request for change in the date of birth of a Government servant made on a date within three years of the date of his actual superannuation should be entertained."Validity of the Rule is not challenged by the respondent. We are unable to agree with the view of the High Court that the date of "actual superannuation" within the meaning of S. R. 8 Note is the date of superannuation computed with reference to the claim made by the public servant, and not with reference to the date as entered in the service record. If such an interpretation be accepted, S. R. 8 Note would prove in a majority of cases of no practical utility. It is intended by S. R. 8 Note that any error in the service record shall be rectified at the earliest opportunity and in no case should an application for rectification be entertained within three years of the "date of actual superannuation i.e. the date of superannuation according to the service record.6. Again, if the contention of the respondent were correct, on the date on which he entered service he was a minor. If on a representation that he had attained the age of ma majority on the date on which he entered service, it would not be open for him after being admitted to the service, to contend that under the appropriate service rules he could not have been admitted to the service, but for the misrepresentation made by him.7. Counsel for the respondent relied upon the judgment of this Court in State of Orissa v Dr. (Miss) Binapani Dei, (1967) 2 SCR 625 = (AIR 1967 SC 1269 ) in support of the contention that a public servant must be given an opportunity to prove his true date of birth before he is superannuated, and any order passed without such opportunity is illegal In our judgment Dr. (Miss) Binapanis case, (1967) 2 SCR 625 - (AIR l967 SC 1269) enunciates no such proposition In that case in the service record of a public servant, April 10, 1910 was entered as the date of her birth. An enquiry was held and the public servant was required to show cause why her date of birth should not be accepted as April 4, 1907 Thereafter the Government of Orissa determined her date of birth as April 16, 1907, and declared that she should be deemed to have been superannuated on April 16, 1962. This order was challenged by the public servant in a petition to the High Court of Orissa. The High Court held that the order of the State Government amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to removal within the meaning of Art. 311 of the Constitution, and since she was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to her, the order was invalid This Court confirmed the order passed by the High Court of Orissa It was observed by this Court that even an administrative order which involved civil consequences must be made consistently with the rules of natural justice The person concerned must be informed of the case of the State and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken The public servant according to the service record could not be superannuated before April 10, 1965. But by an enquiry which was not held in a manner consistent with the rules of natural justice an order was made altering the date of birth as entered in the service record, and declaring that she was born in 1907 That was plainly an order passed to the prejudice of the public servant without giving an opportunity to meet the case of the State In the present case, however, the State did not seek to modify the service record: it was the respondent who sought modification of the service record and claimed that he be declared superannuated only on the basis of the rectification prayed for by him It is true that ordinarily when an application is made for rectification of age by a public servant concerned, the State should give the applicant proper opportunity to prove his case and should give due consideration to the evidence brought before it But in the present case, since the application for rectification was made within three years of the date of actual superannuation, according to S. R. 8 Note the application could not be entertained. The principle of Dr. (Miss) Binapanis case, (1967) 2 SCR 625 = (AIR 1967 SC 1269 ) has not application to this case.
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5. It is true that the State authorities did not give to the respondent an opportunity to support his case that he was born on August 1, 1911, and that the service record was erroneous. But in view of S. R. 8 Note, which governed the employment of the respondent an application for correction of the service record could not be entertained if it was made within three years before the date of "actualof the Rule is not challenged by the respondent. We are unable to agree with the view of the High Court that the date of "actual superannuation" within the meaning of S. R. 8 Note is the date of superannuation computed with reference to the claim made by the public servant, and not with reference to the date as entered in the service record. If such an interpretation be accepted, S. R. 8 Note would prove in a majority of cases of no practical utility. It is intended by S. R. 8 Note that any error in the service record shall be rectified at the earliest opportunity and in no case should an application for rectification be entertained within three years of the "date of actual superannuation i.e. the date of superannuation according to the service record.enquiry was held and the public servant was required to show cause why her date of birth should not be accepted as April 4, 1907 Thereafter the Government of Orissa determined her date of birth as April 16, 1907, and declared that she should be deemed to have been superannuated on April 16, 1962. This order was challenged by the public servant in a petition to the High Court of Orissa. The High Court held that the order of the State Government amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to removal within the meaning of Art. 311 of the Constitution, and since she was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to her, the order was invalid This Court confirmed the order passed by the High Court of Orissa It was observed by this Court that even an administrative order which involved civil consequences must be made consistently with the rules of natural justice The person concerned must be informed of the case of the State and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken The public servant according to the service record could not be superannuated before April 10, 1965. But by an enquiry which was not held in a manner consistent with the rules of natural justice an order was made altering the date of birth as entered in the service record, and declaring that she was born in 1907 That was plainly an order passed to the prejudice of the public servant without giving an opportunity to meet the case of the State In the present case, however, the State did not seek to modify the service record: it was the respondent who sought modification of the service record and claimed that he be declared superannuated only on the basis of the rectification prayed for by him It is true that ordinarily when an application is made for rectification of age by a public servant concerned, the State should give the applicant proper opportunity to prove his case and should give due consideration to the evidence brought before it But in the present case, since the application for rectification was made within three years of the date of actual superannuation, according to S. R. 8 Note the application could not be entertained. The principle of Dr. (Miss) Binapanis case, (1967) 2 SCR 625 = (AIR 1967 SC 1269 ) has not application to this case.
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State of Karnataka Vs. K. M. Krishnaiah | the judgment of the Sessions Judge where it has been stated that as the accused had challenged the appointment of the person who had issued the demand notice as the Enforcement Officer, it was necessary for the prosecution to prove the appointment and that, in absence of any such proof, there is no occasion for taking a different view of the matter.3. Clause 2(c) of the Levy Order defines "Enforcement Officer" to meanany person appointed by order of the Deputy Commissioner of the district as Enforcement Officer in respect of such area as may be specified in such order, and where no such person is appointed for the area, the Revenue Inspector of the circle having jurisdiction.It has been argued by Mr. Nettar, for the appellant State, that as the order for the levy of paddy had been signed and issued by the Revenue Inspector concerned, the Sessions Judge committed an apparent error in taking the view that it was not issued and signed by a duly appointed Enforcement Officer.4. As would appear from the definition mentioned above, Enforcement Officer was the person appointed by an order of the Deputy Commissioner as such for a specified area. It was therefore permissible for the Deputy Commissioner to appoint a person other than the Revenue Inspector to be the Enforcement Officer, and it was only when he did not think it proper to do so that the Revenue Inspector of the circle could function as the Enforcement Officer. So when the accused has raised a controversy regarding the authority of the Revenue Inspector to issue the order of levy, it was necessary for the prosecution to prove that no one else had been appointed to be the Enforcement Officer and the Revenue Inspector of the circle has the authority to function in that capacity. The prosecution did not, however, produce any such evidence. In fact Mr. Nettar has not been able to refer us to any averment of the prosecution or the appellant on the record that no one else had been appointed as the Enforcement Officer and the Revenue Inspector had the authority to function as such. It cannot therefore be said that the prosecution was able to prove that the demand notice was issued by a competent officer.5. It has next been argued by Mr. Nettar that as the respondent did not make a grievance that the quantity of paddy to be sold by him in pursuance of Clause 3(2) of the Levy Order was excessive and he did not avail of the provisions of Clause 4 of the Levy Order, it was not permissible for him to dispute his liability to sell the quantity of paddy which had been determined by the officer concerned. The Sessions Judge has taken the view that it was permissible for the accused to show that the order which has been served on him for the sale of levy was illegal as it did not comply with the requirement of Clause 3(1) of the Levy Order inasmuch as it was made without ascertaining the quantity of paddy in his possession or control.6. Clause 3 of the Levy Order reads as follows :3. Levy of Paddy. - (1) Every grower shall out of the paddy grown in his holding and held in stock by him in respect of each crop, sell to the State Government or its authorised agent at the purchase price such quantity of paddy in accordance with the scale specified in Schedule I as may be determined by the Enforcement Officer after taking into consideration the information available with him regarding the holding of the grower and the paddy grown in such holding.There is an explanation to the clause which provides, inter alia, that paddy in the possession or control of the grower immediately after it is harvested shall be deemed to be paddy held in stock by the grower.It was therefore necessary for the Enforcement Officer to ascertain the quantity of paddy in the possession or control of the respondent immediately after it was harvested, for the purpose of determining the quantity of the levy, and it was not enough for him to determine the quantity on the basis of extent of the cultivation in the field. It is not disputed before us that the prosecution did not lead any evidence to show that the Enforcement Officer had taken into consideration the quantity of the paddy in the possession or control of the respondent for the purpose of determining the quantity which he was required to sell to the Enforcement Officer, and it cannot be said that the order which was issued for the sale of paddy was drawn up in accordance with the law.7. Mr. Nettar tried to get out of this difficulty by arguing that as the respondent did not raise an objection regarding the quantity of the paddy specified in the order which was served on him all that the trial Court has to do was to make a reference to Schedule I of the Levy Order and to uphold the quantity of the levy by calculating it on the assumption that it has been grown over an area of 7.12 acres. The argument is however untenable because what Clause 3 of the Levy Order provides is not merely that a grower shall, inter alia, sell to the State Government that quantity of paddy which he is liable to sell in accordance with the scale specified in Schedule I, but also that his liability in that respect shall be "determined" by an Enforcement Officer. So when such a determination was not made on the basis of the paddy "held in stock" by the appellant, we have no reason to think that the Sessions Judge and the High Court went wrong in upholding the contention of the respondent that the order which had been served on him under Clause 3(2) of the Levy Order was not drawn up in accordance with the law and was not binding on him. | 0[ds]It was therefore necessary for the Enforcement Officer to ascertain the quantity of paddy in the possession or control of the respondent immediately after it was harvested, for the purpose of determining the quantity of the levy, and it was not enough for him to determine the quantity on the basis of extent of the cultivation in the field. It is not disputed before us that the prosecution did not lead any evidence to show that the Enforcement Officer had taken into consideration the quantity of the paddy in the possession or control of the respondent for the purpose of determining the quantity which he was required to sell to the Enforcement Officer, and it cannot be said that the order which was issued for the sale of paddy was drawn up in accordance with the law.7. Mr. Nettar tried to get out of this difficulty by arguing that as the respondent did not raise an objection regarding the quantity of the paddy specified in the order which was served on him all that the trial Court has to do was to make a reference to Schedule I of the Levy Order and to uphold the quantity of the levy by calculating it on the assumption that it has been grown over an area of 7.12 acres. The argument is however untenable because what Clause 3 of the Levy Order provides is not merely that a grower shall, inter alia, sell to the State Government that quantity of paddy which he is liable to sell in accordance with the scale specified in Schedule I, but also that his liability in that respect shall be "determined" by an Enforcement Officer. So when such a determination was not made on the basis of the paddy "held in stock" by the appellant, we have no reason to think that the Sessions Judge and the High Court went wrong in upholding the contention of the respondent that the order which had been served on him under Clause 3(2) of the Levy Order was not drawn up in accordance with the law and was not binding on him. | 0 | 1,341 | 377 | ### Instruction:
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the judgment of the Sessions Judge where it has been stated that as the accused had challenged the appointment of the person who had issued the demand notice as the Enforcement Officer, it was necessary for the prosecution to prove the appointment and that, in absence of any such proof, there is no occasion for taking a different view of the matter.3. Clause 2(c) of the Levy Order defines "Enforcement Officer" to meanany person appointed by order of the Deputy Commissioner of the district as Enforcement Officer in respect of such area as may be specified in such order, and where no such person is appointed for the area, the Revenue Inspector of the circle having jurisdiction.It has been argued by Mr. Nettar, for the appellant State, that as the order for the levy of paddy had been signed and issued by the Revenue Inspector concerned, the Sessions Judge committed an apparent error in taking the view that it was not issued and signed by a duly appointed Enforcement Officer.4. As would appear from the definition mentioned above, Enforcement Officer was the person appointed by an order of the Deputy Commissioner as such for a specified area. It was therefore permissible for the Deputy Commissioner to appoint a person other than the Revenue Inspector to be the Enforcement Officer, and it was only when he did not think it proper to do so that the Revenue Inspector of the circle could function as the Enforcement Officer. So when the accused has raised a controversy regarding the authority of the Revenue Inspector to issue the order of levy, it was necessary for the prosecution to prove that no one else had been appointed to be the Enforcement Officer and the Revenue Inspector of the circle has the authority to function in that capacity. The prosecution did not, however, produce any such evidence. In fact Mr. Nettar has not been able to refer us to any averment of the prosecution or the appellant on the record that no one else had been appointed as the Enforcement Officer and the Revenue Inspector had the authority to function as such. It cannot therefore be said that the prosecution was able to prove that the demand notice was issued by a competent officer.5. It has next been argued by Mr. Nettar that as the respondent did not make a grievance that the quantity of paddy to be sold by him in pursuance of Clause 3(2) of the Levy Order was excessive and he did not avail of the provisions of Clause 4 of the Levy Order, it was not permissible for him to dispute his liability to sell the quantity of paddy which had been determined by the officer concerned. The Sessions Judge has taken the view that it was permissible for the accused to show that the order which has been served on him for the sale of levy was illegal as it did not comply with the requirement of Clause 3(1) of the Levy Order inasmuch as it was made without ascertaining the quantity of paddy in his possession or control.6. Clause 3 of the Levy Order reads as follows :3. Levy of Paddy. - (1) Every grower shall out of the paddy grown in his holding and held in stock by him in respect of each crop, sell to the State Government or its authorised agent at the purchase price such quantity of paddy in accordance with the scale specified in Schedule I as may be determined by the Enforcement Officer after taking into consideration the information available with him regarding the holding of the grower and the paddy grown in such holding.There is an explanation to the clause which provides, inter alia, that paddy in the possession or control of the grower immediately after it is harvested shall be deemed to be paddy held in stock by the grower.It was therefore necessary for the Enforcement Officer to ascertain the quantity of paddy in the possession or control of the respondent immediately after it was harvested, for the purpose of determining the quantity of the levy, and it was not enough for him to determine the quantity on the basis of extent of the cultivation in the field. It is not disputed before us that the prosecution did not lead any evidence to show that the Enforcement Officer had taken into consideration the quantity of the paddy in the possession or control of the respondent for the purpose of determining the quantity which he was required to sell to the Enforcement Officer, and it cannot be said that the order which was issued for the sale of paddy was drawn up in accordance with the law.7. Mr. Nettar tried to get out of this difficulty by arguing that as the respondent did not raise an objection regarding the quantity of the paddy specified in the order which was served on him all that the trial Court has to do was to make a reference to Schedule I of the Levy Order and to uphold the quantity of the levy by calculating it on the assumption that it has been grown over an area of 7.12 acres. The argument is however untenable because what Clause 3 of the Levy Order provides is not merely that a grower shall, inter alia, sell to the State Government that quantity of paddy which he is liable to sell in accordance with the scale specified in Schedule I, but also that his liability in that respect shall be "determined" by an Enforcement Officer. So when such a determination was not made on the basis of the paddy "held in stock" by the appellant, we have no reason to think that the Sessions Judge and the High Court went wrong in upholding the contention of the respondent that the order which had been served on him under Clause 3(2) of the Levy Order was not drawn up in accordance with the law and was not binding on him.
### Response:
0
### Explanation:
It was therefore necessary for the Enforcement Officer to ascertain the quantity of paddy in the possession or control of the respondent immediately after it was harvested, for the purpose of determining the quantity of the levy, and it was not enough for him to determine the quantity on the basis of extent of the cultivation in the field. It is not disputed before us that the prosecution did not lead any evidence to show that the Enforcement Officer had taken into consideration the quantity of the paddy in the possession or control of the respondent for the purpose of determining the quantity which he was required to sell to the Enforcement Officer, and it cannot be said that the order which was issued for the sale of paddy was drawn up in accordance with the law.7. Mr. Nettar tried to get out of this difficulty by arguing that as the respondent did not raise an objection regarding the quantity of the paddy specified in the order which was served on him all that the trial Court has to do was to make a reference to Schedule I of the Levy Order and to uphold the quantity of the levy by calculating it on the assumption that it has been grown over an area of 7.12 acres. The argument is however untenable because what Clause 3 of the Levy Order provides is not merely that a grower shall, inter alia, sell to the State Government that quantity of paddy which he is liable to sell in accordance with the scale specified in Schedule I, but also that his liability in that respect shall be "determined" by an Enforcement Officer. So when such a determination was not made on the basis of the paddy "held in stock" by the appellant, we have no reason to think that the Sessions Judge and the High Court went wrong in upholding the contention of the respondent that the order which had been served on him under Clause 3(2) of the Levy Order was not drawn up in accordance with the law and was not binding on him.
|
State Of Kerala Vs. Indian Aluminium Co.Ltd.& Anr | State Government to reduce the rate at which the duty is leviable on such consumer or to exempt such consumer from payment of duty subject to the terms and condition imposed by the Government. Section 4 of the Act is quoted below :- "4. Levy of Electricity Duty on consumers. - Every consumer belonging to any of the classes specified in column (2) of the Schedule shall pay every month to the Government in the prescribed manner a duty calculated at the rate specified against that class in column (3) thereof : Provided that in cases where the supply of energy to a consumer is regulated by an agreement entered into between the Government or the licensee and the consumer it shall be competent for the Government either to reduce the rate at which duty is leviable on such consumer or to exempt such consumer from payment of duty under this section subject to such terms and conditions as may be imposed by the Government." It is not disputed that State of Kerala has granted partial exemption in the matter of payment of duty to the company. It is not the case of State of Kerala that the exemption so granted has been annulled or abrogated or rescinded by any fresh Order. Therefore, so long as the exemption Order continued to remain in force, the Company was not liable to pay specified duty under Section 4 of the Kerala Electricity Duty Act. Neither the State Government nor the Board was within its rights to demand from the company electricity duty at the rate over and above what has been provided in the exemption Order. We are, therefore, of the opinion that the High Court was right in setting aside the demand of duty which was based without reference to the statutory exemption provided to the appellant-company. 7. In C.A. No. 155/1998, it was urged on behalf of the company that by virtue of sub-section (5) of Section 49 of the Act, the appellant company has been picked up for hostile discrimination and as such the said provision is violative of Article 14 of the Constitution. According to the learned counsel it is open to the Board to enter into a special agreement under the provisions of sub-section (3) of Section 49 with other similarly situated consumers, but the appellant-company alone been denied that benefit, and in future the appellant-company has been deprived of from entering into a special agreement under sub-section (3) of Section 49 of the Act. We find the argument of learned counsel is totally misplaced. We have seen in the earlier part of the judgment that the appellant-company was the only consumer with whom the Board had a special agreement when sub-section (5) was inserted in Section 49 of the Act, and, therefore, it was that agreement which was to be dealt with to enable the Board to collect the normal tariff under section (1) of Section 49 of the Act. This was done only to bring the appellant-company under the umbrella of uniform tariff. Thus, there was a reasonable basis for classification deducible from the objects and reasons to make the uniform tariff rate applicable to the appellant-company and to rescind the concessional rate which the appellant-company was enjoying. By the said provision the appellant-company was brought at par with the other similarly situated consumers. The appellant-company has been treated alike and the said amendment has made the Company liable to pay the electricity charges at normal tariff applicable to other similar situated consumers. By the Amendment Act, sub-section (3) of Section 49 has not been affected. It still exists in the Act and it is always open to the Board to enter into a special agreement under sub-section (3) of Section 49 of the Act with any consumer, including the appellant-company. So long as Section 49(3) remains in force, there is nothing to prevent the Board to exercise that power in favour of the consumers, including the appellant-company. However, this power under Section 49(3) is subject to sub-section (4) of Section 49 of the Act, whereby the said power has to be exercised without showing any undue influence to any consumer. Neither sub-section (3) nor sub-section (5) of Section 49 places any restriction on exercise of power of the Board to enter into a fresh agreement with the appellant-company in case the appellant-company makes out a case for supplying electricity at a concessional rates. Had the legislature intended that in future no special agreement was to be entered into under sub-section (3) of Section 49, the legislature could have very well omitted sub-section (3) of Section 49 of the Act, but has deliberately retained it with the result that, if in future circumstances demand, the Board can enter into a special agreement subject to the provisions of sub-section (4) of Section 49 of the Act. Sub-section (5) has been enacted only to rescind the agreement for supply of electricity at concessional rates incorporated in the special agreement prior to the Act of 1983 and it did not create any bar in future to enter into an agreement under Section 49(3) of the Act. The appellant-company, as well as other similarly situated consumers, are entitled to enter into an agreement with the Board if circumstances so demand, so long as sub-section (3) of Section 49 is in force. Before the High Court, as well as here in this appeal, it was stated on behalf of the State that sub-section (5) of Section 49 has not taken away the right of the Board to exercise its power to enter into an agreement with the appellant-company if the circumstances so demand. Under such circumstances we do not find any merit in the contention that by the Amendment Act that it is open to the Board to enter into special agreement with other consumers while denying such benefit to the appellants-company. We, therefore, hold that sub-section (5) of Section 49 is not violative of Article 14 of the Constitution. | 0[ds]On a perusal of(5) it is clear that by this amendment the agreement entered into between the company and the Board was not rescinded. What was rescinded, was the concessional rates at which the company was receiving electricity. The agreement, as a whole, was not rescinded. For other purposes it remained intact. It is also clear from the fact that, on insertion of(5) in Section 49 of the Act in the year 1983, no fresh agreement was entered into between the Board and the company and the old agreement continued. Had there been an abrogation of the entire agreement, the Board would not have supplied electricity to the company. At no point of time, the Board after passing of the Amendment Act stopped supplying electricity to the company or entered into any fresh agreement for supply ofare, therefore, of the view that by virtue of insertion of(5) in Section 49 of the Act the special agreement entered into between the Board and company as a whole was not annulled and only thing that was annulled was the agreement relating to rates of electricity payable by the company under the agreement and further the said Amendment Act did not in any manner affect the payment of duty by the Company at the concessionalIn C.A. No.find the argument of learned counsel is totally misplaced. We have seen in the earlier part of the judgment that thewas the only consumer with whom the Board had a special agreement when(5) was inserted in Section 49 of the Act, and, therefore, it was that agreement which was to be dealt with to enable the Board to collect the normal tariff under section (1) of Section 49 of the Act. This was done only to bring theunder the umbrella of uniform tariff. Thus, there was a reasonable basis for classification deducible from the objects and reasons to make the uniform tariff rate applicable to theand to rescind the concessional rate which thewas enjoying. By the said provision thewas brought at par with the other similarly situated consumers. Thehas been treated alike and the said amendment has made the Company liable to pay the electricity charges at normal tariff applicable to other similar situated consumers. By the Amendment Act,(3) of Section 49 has not been affected. It still exists in the Act and it is always open to the Board to enter into a special agreement under(3) of Section 49 of the Act with any consumer, including theSo long as Section 49(3) remains in force, there is nothing to prevent the Board to exercise that power in favour of the consumers, including theHowever, this power under Section 49(3) is subject to(4) of Section 49 of the Act, whereby the said power has to be exercised without showing any undue influence to any consumer. Neitherion (5) of Section 49 places any restriction on exercise of power of the Board to enter into a fresh agreement with thein case themakes out a case for supplying electricity at a concessional rates. Had the legislature intended that in future no special agreement was to be entered into under(3) of Section 49, the legislature could have very well omitted(3) of Section 49 of the Act, but has deliberately retained it with the result that, if in future circumstances demand, the Board can enter into a special agreement subject to the provisions of(4) of Section 49 of the Act.(5) has been enacted only to rescind the agreement for supply of electricity at concessional rates incorporated in the special agreement prior to the Act of 1983 and it did not create any bar in future to enter into an agreement under Section 49(3) of the Act. Theas well as other similarly situated consumers, are entitled to enter into an agreement with the Board if circumstances so demand, so long as(3) of Section 49 is in force. Before the High Court, as well as here in this appeal, it was stated on behalf of the State that(5) of Section 49 has not taken away the right of the Board to exercise its power to enter into an agreement with theif the circumstances so demand. Under such circumstances we do not find any merit in the contention that by the Amendment Act that it is open to the Board to enter into special agreement with other consumers while denying such benefit to theWe, therefore, hold that(5) of Section 49 is not violative of Article 14 of the Constitution. | 0 | 2,843 | 851 | ### 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:
State Government to reduce the rate at which the duty is leviable on such consumer or to exempt such consumer from payment of duty subject to the terms and condition imposed by the Government. Section 4 of the Act is quoted below :- "4. Levy of Electricity Duty on consumers. - Every consumer belonging to any of the classes specified in column (2) of the Schedule shall pay every month to the Government in the prescribed manner a duty calculated at the rate specified against that class in column (3) thereof : Provided that in cases where the supply of energy to a consumer is regulated by an agreement entered into between the Government or the licensee and the consumer it shall be competent for the Government either to reduce the rate at which duty is leviable on such consumer or to exempt such consumer from payment of duty under this section subject to such terms and conditions as may be imposed by the Government." It is not disputed that State of Kerala has granted partial exemption in the matter of payment of duty to the company. It is not the case of State of Kerala that the exemption so granted has been annulled or abrogated or rescinded by any fresh Order. Therefore, so long as the exemption Order continued to remain in force, the Company was not liable to pay specified duty under Section 4 of the Kerala Electricity Duty Act. Neither the State Government nor the Board was within its rights to demand from the company electricity duty at the rate over and above what has been provided in the exemption Order. We are, therefore, of the opinion that the High Court was right in setting aside the demand of duty which was based without reference to the statutory exemption provided to the appellant-company. 7. In C.A. No. 155/1998, it was urged on behalf of the company that by virtue of sub-section (5) of Section 49 of the Act, the appellant company has been picked up for hostile discrimination and as such the said provision is violative of Article 14 of the Constitution. According to the learned counsel it is open to the Board to enter into a special agreement under the provisions of sub-section (3) of Section 49 with other similarly situated consumers, but the appellant-company alone been denied that benefit, and in future the appellant-company has been deprived of from entering into a special agreement under sub-section (3) of Section 49 of the Act. We find the argument of learned counsel is totally misplaced. We have seen in the earlier part of the judgment that the appellant-company was the only consumer with whom the Board had a special agreement when sub-section (5) was inserted in Section 49 of the Act, and, therefore, it was that agreement which was to be dealt with to enable the Board to collect the normal tariff under section (1) of Section 49 of the Act. This was done only to bring the appellant-company under the umbrella of uniform tariff. Thus, there was a reasonable basis for classification deducible from the objects and reasons to make the uniform tariff rate applicable to the appellant-company and to rescind the concessional rate which the appellant-company was enjoying. By the said provision the appellant-company was brought at par with the other similarly situated consumers. The appellant-company has been treated alike and the said amendment has made the Company liable to pay the electricity charges at normal tariff applicable to other similar situated consumers. By the Amendment Act, sub-section (3) of Section 49 has not been affected. It still exists in the Act and it is always open to the Board to enter into a special agreement under sub-section (3) of Section 49 of the Act with any consumer, including the appellant-company. So long as Section 49(3) remains in force, there is nothing to prevent the Board to exercise that power in favour of the consumers, including the appellant-company. However, this power under Section 49(3) is subject to sub-section (4) of Section 49 of the Act, whereby the said power has to be exercised without showing any undue influence to any consumer. Neither sub-section (3) nor sub-section (5) of Section 49 places any restriction on exercise of power of the Board to enter into a fresh agreement with the appellant-company in case the appellant-company makes out a case for supplying electricity at a concessional rates. Had the legislature intended that in future no special agreement was to be entered into under sub-section (3) of Section 49, the legislature could have very well omitted sub-section (3) of Section 49 of the Act, but has deliberately retained it with the result that, if in future circumstances demand, the Board can enter into a special agreement subject to the provisions of sub-section (4) of Section 49 of the Act. Sub-section (5) has been enacted only to rescind the agreement for supply of electricity at concessional rates incorporated in the special agreement prior to the Act of 1983 and it did not create any bar in future to enter into an agreement under Section 49(3) of the Act. The appellant-company, as well as other similarly situated consumers, are entitled to enter into an agreement with the Board if circumstances so demand, so long as sub-section (3) of Section 49 is in force. Before the High Court, as well as here in this appeal, it was stated on behalf of the State that sub-section (5) of Section 49 has not taken away the right of the Board to exercise its power to enter into an agreement with the appellant-company if the circumstances so demand. Under such circumstances we do not find any merit in the contention that by the Amendment Act that it is open to the Board to enter into special agreement with other consumers while denying such benefit to the appellants-company. We, therefore, hold that sub-section (5) of Section 49 is not violative of Article 14 of the Constitution.
### Response:
0
### Explanation:
On a perusal of(5) it is clear that by this amendment the agreement entered into between the company and the Board was not rescinded. What was rescinded, was the concessional rates at which the company was receiving electricity. The agreement, as a whole, was not rescinded. For other purposes it remained intact. It is also clear from the fact that, on insertion of(5) in Section 49 of the Act in the year 1983, no fresh agreement was entered into between the Board and the company and the old agreement continued. Had there been an abrogation of the entire agreement, the Board would not have supplied electricity to the company. At no point of time, the Board after passing of the Amendment Act stopped supplying electricity to the company or entered into any fresh agreement for supply ofare, therefore, of the view that by virtue of insertion of(5) in Section 49 of the Act the special agreement entered into between the Board and company as a whole was not annulled and only thing that was annulled was the agreement relating to rates of electricity payable by the company under the agreement and further the said Amendment Act did not in any manner affect the payment of duty by the Company at the concessionalIn C.A. No.find the argument of learned counsel is totally misplaced. We have seen in the earlier part of the judgment that thewas the only consumer with whom the Board had a special agreement when(5) was inserted in Section 49 of the Act, and, therefore, it was that agreement which was to be dealt with to enable the Board to collect the normal tariff under section (1) of Section 49 of the Act. This was done only to bring theunder the umbrella of uniform tariff. Thus, there was a reasonable basis for classification deducible from the objects and reasons to make the uniform tariff rate applicable to theand to rescind the concessional rate which thewas enjoying. By the said provision thewas brought at par with the other similarly situated consumers. Thehas been treated alike and the said amendment has made the Company liable to pay the electricity charges at normal tariff applicable to other similar situated consumers. By the Amendment Act,(3) of Section 49 has not been affected. It still exists in the Act and it is always open to the Board to enter into a special agreement under(3) of Section 49 of the Act with any consumer, including theSo long as Section 49(3) remains in force, there is nothing to prevent the Board to exercise that power in favour of the consumers, including theHowever, this power under Section 49(3) is subject to(4) of Section 49 of the Act, whereby the said power has to be exercised without showing any undue influence to any consumer. Neitherion (5) of Section 49 places any restriction on exercise of power of the Board to enter into a fresh agreement with thein case themakes out a case for supplying electricity at a concessional rates. Had the legislature intended that in future no special agreement was to be entered into under(3) of Section 49, the legislature could have very well omitted(3) of Section 49 of the Act, but has deliberately retained it with the result that, if in future circumstances demand, the Board can enter into a special agreement subject to the provisions of(4) of Section 49 of the Act.(5) has been enacted only to rescind the agreement for supply of electricity at concessional rates incorporated in the special agreement prior to the Act of 1983 and it did not create any bar in future to enter into an agreement under Section 49(3) of the Act. Theas well as other similarly situated consumers, are entitled to enter into an agreement with the Board if circumstances so demand, so long as(3) of Section 49 is in force. Before the High Court, as well as here in this appeal, it was stated on behalf of the State that(5) of Section 49 has not taken away the right of the Board to exercise its power to enter into an agreement with theif the circumstances so demand. Under such circumstances we do not find any merit in the contention that by the Amendment Act that it is open to the Board to enter into special agreement with other consumers while denying such benefit to theWe, therefore, hold that(5) of Section 49 is not violative of Article 14 of the Constitution.
|
Commr. Of S.T Vs. Sai Publication Fund | having agriculture for the purpose of earning income from the fields but there was nothing to show that he acquired the lands with the primary intention of doing business of selling or buying agricultural produce. This decision was approved by this Court in Dy. Commissioner of Agricultural Income Tax & Sales Tax. vs. Travancore Rubber & Tea Co. [(1967) 20 STC 520 (SC)] and it was held that where the only facts established were that the assessee converted latex tapped from rubber trees into sheets and effects a sale of those sheets to its customers, the conversion of latex into sheets being a process essential for transport and marketing of the produce, the Department had failed to prove that the assessee was formed with a commercial purpose. The Allahabad High in Swadeshi Cotton Mills Co. Ltd. vs. STO [(1964) 15 STC 505 (All) ] was dealing with a batch of cases where different bodies were running canteens. One of the cases concerned Aligarh Muslim University which was maintaining dining halls where it was serving food and refreshments to its resident-students. It was held, referring to observations of this Court in University of Delhi vs. Ram Nath [AIR 1963 SC 1873 ] that it was incongruous to call educational activities of the University as amounting to carrying on business. The activity of serving food in the dining hall was a minor part of the overall activity of the university. Education was more a mission and avocation rather than a profession or trade or business. The aim of education was the creation of a well-educated, healthy, young generation imbued with a rational and progressive outlook of life. On this reasoning, it was held that Aligarh University was not carrying on business and the sale of food at the dining halls was not liable to tax. Likewise after the amendment of the definition of business question arose in Indian Institute of Technology vs. State of U.P. [(1976) 38 STC 428 (All) ] with respect to the visitors hostel maintained by the Indian Institute of Technology where lodging and boarding facilities were provided to persons who would come to the Institute in connection with education and the academic activities of the Institute. It was observed that the statutory obligation of maintenance or the hostel which involved supply and sale of food was an integral part of the objects of the Institute. Nor could the running of the hostel be treated as the principal activity of the Institute. The Institute could not not be held to be doing business. Similarly, in the case of a research organization, in Dy. Commissioner (C.T.) vs. South India Textile Research Assn. [(1978) 41 STC 197) (Mad) ] which was purchasing cotton and selling the cotton yarn/cotton waste resulting from the research activities, it was held that the Institute was solely and exclusively constituted for the purposes of research and was not carrying on business and these sales and purchases above-mentioned could not be subjected to sales tax. Likewise, in State of T.N. vs. Cement Research Institute of India [(1992) 86 STC 124 (Mad) it was held that the Institute was an organisation the objects of which were to promote research and other scientific work that the laboratories and workshops were maintained by the organization for conducting experiments and that though the cement manufactured as a result of research was sold, it could not be considered to be a trading activity within Section 2(d) of the Tamil Nadu General Sales Tax Act, 1959. Again in Tirumala Tirupati Devasthanam vs. State of Madras [(1972) 29 STC 266 (Mad) ] the disputes arose with regard to the sales of silverware etc. which are customarily deposited in the hundis by devotees. It was held by the Madras High Court that the Devasthanams main activities were religious in nature and these sales were not liable to tax. (No doubt, the case related to a period where the profit motive was not excluded by statute). We are of the view that all these decisions involve the general principle that the main activity must be business and these rulings do support the case of the respondent-Port Trust. (Emphasis supplied) 17. This decision is directly on the point supporting the case of the respondent after noticing number of decisions on the point including the decisions cited by the learned counsel before us. It may be stated that the question of profit motive to nor profit move would be relevant only where person carries on trade, commerce, manufacture or adventure in the nature of trade, commerce etc. On the facts and in the circumstances of the present case irrespective of the profit motive, it could not be said that the Trust either was dealer or was carrying on trade, commerce etc. The Trust is not carrying on trade, commerce etc., in the sense of occupation to be a dealer as its main object is to spread message of Saibaba of Shridi as already noticed above. Having regard to all aspects of the matter, the High Court was right in answering the question referred by the Tribunal in the affirmative and in favour of the respondent-assessee. We must however add here that whether a particular person is a dealer and whether he carries on business, are the matters to be decided on facts and in the circumstances of each case. 18. For what is stated above, we answer the question set out in the beginning in the negative and in favour of the respondent-assessee and dismiss the appeal finding no merit in it but with no order as to costs. Civil Appeal No. 1716 of 1999 19. The impugned order was passed by the Tribunal relying on the judgment of the Bombay High Court in the case of Sai Publication Fund impugned in abovementioned C.A. No. 9445/96. The learned counsel also submitted that the result of this appeal depended on the decision in said C.A. No. 9445/96 as the facts and circumstances of both the cases are similar. 20. | 0[ds]No doubt, the definition of business given in Section 2(5A) of the Act even without profit motive is wide enough to include any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture and any transaction in connection with or incidental or ancillary to the commencement or closure of such trade, commerce, manufacture, adventure or concern. If the main, activity is not business, when any transaction incidental or ancillary would not normally amount to business unless an independent intention to carry on business in the incidental or ancillary activity is established. In such cases, the onus of proof of an independent intention to carry on business connected with or incidental or ancillary sales will rest on the Department. Thus, if the main activity of a person is not trade, commerce etc., ordinarily incidental or ancillary activity may not come within the meaning of business. To put it differently, the inclusion of incidental or ancillary activity in the definition of business pre-supposes the existence of trade, commerce etc. The definition of dealer contained in Section 2(11) of the Act clearly indicates that in order to hold a person to be a dealer, he must carry on business and then only he may also be deemed to be carrying on business in respect of transaction incidental or ancillary thereto. We have stated above that the main and dominant activity of the Trust in furtherance of its object is to spread message. Hence, such activity does not amount to business. Publication for the purpose of spreading message is incidental to the main activity which the Trust does not carry as business. In this view, the activity of the Trust in bringing out publications and selling them at cost price to spread message of Saibaba does not make it a dealer under Section 2(11) of the ActIt may be stated that the question of profit motive to nor profit move would be relevant only where person carries on trade, commerce, manufacture or adventure in the nature of trade, commerce etc. On the facts and in the circumstances of the present case irrespective of the profit motive, it could not be said that the Trust either was dealer or was carrying on trade, commerce etc. The Trust is not carrying on trade, commerce etc., in the sense of occupation to be a dealer as its main object is to spread message of Saibaba of Shridi as already noticed above. Having regard to all aspects of the matter, the High Court was right in answering the question referred by the Tribunal in the affirmative and in favour of the respondent-assessee. We must however add here that whether a particular person is a dealer and whether he carries on business, are the matters to be decided on facts and in the circumstances of each case18. For what is stated above, we answer the question set out in the beginning in the negative and in favour of the respondent-assessee and dismiss the appeal finding no merit in it but with no order as to costs. Civil Appeal No. 1716 of 199919. The impugned order was passed by the Tribunal relying on the judgment of the Bombay High Court in the case of Sai Publication Fund impugned in abovementioned C.A. No. 9445/96. The learned counsel also submitted that the result of this appeal depended on the decision in said C.A. No. 9445/96 as the facts and circumstances of both the cases are similar. | 0 | 4,634 | 644 | ### 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:
having agriculture for the purpose of earning income from the fields but there was nothing to show that he acquired the lands with the primary intention of doing business of selling or buying agricultural produce. This decision was approved by this Court in Dy. Commissioner of Agricultural Income Tax & Sales Tax. vs. Travancore Rubber & Tea Co. [(1967) 20 STC 520 (SC)] and it was held that where the only facts established were that the assessee converted latex tapped from rubber trees into sheets and effects a sale of those sheets to its customers, the conversion of latex into sheets being a process essential for transport and marketing of the produce, the Department had failed to prove that the assessee was formed with a commercial purpose. The Allahabad High in Swadeshi Cotton Mills Co. Ltd. vs. STO [(1964) 15 STC 505 (All) ] was dealing with a batch of cases where different bodies were running canteens. One of the cases concerned Aligarh Muslim University which was maintaining dining halls where it was serving food and refreshments to its resident-students. It was held, referring to observations of this Court in University of Delhi vs. Ram Nath [AIR 1963 SC 1873 ] that it was incongruous to call educational activities of the University as amounting to carrying on business. The activity of serving food in the dining hall was a minor part of the overall activity of the university. Education was more a mission and avocation rather than a profession or trade or business. The aim of education was the creation of a well-educated, healthy, young generation imbued with a rational and progressive outlook of life. On this reasoning, it was held that Aligarh University was not carrying on business and the sale of food at the dining halls was not liable to tax. Likewise after the amendment of the definition of business question arose in Indian Institute of Technology vs. State of U.P. [(1976) 38 STC 428 (All) ] with respect to the visitors hostel maintained by the Indian Institute of Technology where lodging and boarding facilities were provided to persons who would come to the Institute in connection with education and the academic activities of the Institute. It was observed that the statutory obligation of maintenance or the hostel which involved supply and sale of food was an integral part of the objects of the Institute. Nor could the running of the hostel be treated as the principal activity of the Institute. The Institute could not not be held to be doing business. Similarly, in the case of a research organization, in Dy. Commissioner (C.T.) vs. South India Textile Research Assn. [(1978) 41 STC 197) (Mad) ] which was purchasing cotton and selling the cotton yarn/cotton waste resulting from the research activities, it was held that the Institute was solely and exclusively constituted for the purposes of research and was not carrying on business and these sales and purchases above-mentioned could not be subjected to sales tax. Likewise, in State of T.N. vs. Cement Research Institute of India [(1992) 86 STC 124 (Mad) it was held that the Institute was an organisation the objects of which were to promote research and other scientific work that the laboratories and workshops were maintained by the organization for conducting experiments and that though the cement manufactured as a result of research was sold, it could not be considered to be a trading activity within Section 2(d) of the Tamil Nadu General Sales Tax Act, 1959. Again in Tirumala Tirupati Devasthanam vs. State of Madras [(1972) 29 STC 266 (Mad) ] the disputes arose with regard to the sales of silverware etc. which are customarily deposited in the hundis by devotees. It was held by the Madras High Court that the Devasthanams main activities were religious in nature and these sales were not liable to tax. (No doubt, the case related to a period where the profit motive was not excluded by statute). We are of the view that all these decisions involve the general principle that the main activity must be business and these rulings do support the case of the respondent-Port Trust. (Emphasis supplied) 17. This decision is directly on the point supporting the case of the respondent after noticing number of decisions on the point including the decisions cited by the learned counsel before us. It may be stated that the question of profit motive to nor profit move would be relevant only where person carries on trade, commerce, manufacture or adventure in the nature of trade, commerce etc. On the facts and in the circumstances of the present case irrespective of the profit motive, it could not be said that the Trust either was dealer or was carrying on trade, commerce etc. The Trust is not carrying on trade, commerce etc., in the sense of occupation to be a dealer as its main object is to spread message of Saibaba of Shridi as already noticed above. Having regard to all aspects of the matter, the High Court was right in answering the question referred by the Tribunal in the affirmative and in favour of the respondent-assessee. We must however add here that whether a particular person is a dealer and whether he carries on business, are the matters to be decided on facts and in the circumstances of each case. 18. For what is stated above, we answer the question set out in the beginning in the negative and in favour of the respondent-assessee and dismiss the appeal finding no merit in it but with no order as to costs. Civil Appeal No. 1716 of 1999 19. The impugned order was passed by the Tribunal relying on the judgment of the Bombay High Court in the case of Sai Publication Fund impugned in abovementioned C.A. No. 9445/96. The learned counsel also submitted that the result of this appeal depended on the decision in said C.A. No. 9445/96 as the facts and circumstances of both the cases are similar. 20.
### Response:
0
### Explanation:
No doubt, the definition of business given in Section 2(5A) of the Act even without profit motive is wide enough to include any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture and any transaction in connection with or incidental or ancillary to the commencement or closure of such trade, commerce, manufacture, adventure or concern. If the main, activity is not business, when any transaction incidental or ancillary would not normally amount to business unless an independent intention to carry on business in the incidental or ancillary activity is established. In such cases, the onus of proof of an independent intention to carry on business connected with or incidental or ancillary sales will rest on the Department. Thus, if the main activity of a person is not trade, commerce etc., ordinarily incidental or ancillary activity may not come within the meaning of business. To put it differently, the inclusion of incidental or ancillary activity in the definition of business pre-supposes the existence of trade, commerce etc. The definition of dealer contained in Section 2(11) of the Act clearly indicates that in order to hold a person to be a dealer, he must carry on business and then only he may also be deemed to be carrying on business in respect of transaction incidental or ancillary thereto. We have stated above that the main and dominant activity of the Trust in furtherance of its object is to spread message. Hence, such activity does not amount to business. Publication for the purpose of spreading message is incidental to the main activity which the Trust does not carry as business. In this view, the activity of the Trust in bringing out publications and selling them at cost price to spread message of Saibaba does not make it a dealer under Section 2(11) of the ActIt may be stated that the question of profit motive to nor profit move would be relevant only where person carries on trade, commerce, manufacture or adventure in the nature of trade, commerce etc. On the facts and in the circumstances of the present case irrespective of the profit motive, it could not be said that the Trust either was dealer or was carrying on trade, commerce etc. The Trust is not carrying on trade, commerce etc., in the sense of occupation to be a dealer as its main object is to spread message of Saibaba of Shridi as already noticed above. Having regard to all aspects of the matter, the High Court was right in answering the question referred by the Tribunal in the affirmative and in favour of the respondent-assessee. We must however add here that whether a particular person is a dealer and whether he carries on business, are the matters to be decided on facts and in the circumstances of each case18. For what is stated above, we answer the question set out in the beginning in the negative and in favour of the respondent-assessee and dismiss the appeal finding no merit in it but with no order as to costs. Civil Appeal No. 1716 of 199919. The impugned order was passed by the Tribunal relying on the judgment of the Bombay High Court in the case of Sai Publication Fund impugned in abovementioned C.A. No. 9445/96. The learned counsel also submitted that the result of this appeal depended on the decision in said C.A. No. 9445/96 as the facts and circumstances of both the cases are similar.
|
Ous Kutilingal Achudan Nair And Ors Vs. Union Of India & Ors | the High Court to impugn the authority of the Commandants (Respondents 2 and 3 herein) in declaring the Unions, represented by the appellants as unlawful associations.2. The Registrar of Trade-Unions had issued Certificates of Registration to the f our Unions represented by the appellants between 1954 and 1970. The General Secretary of Class IV, Civil Employees Union, Bolaram, Secunderabad was informed, per letter dated 12-5-1971, by the Under Secretary of the Government of India, Ministry of Defence that their Unions could not be granted recognition as these employees being in the Training Establishments, were not entitled to form Unions. The Commandant also issued a notice to the appellants to show cause why disciplinary action be not taken against them for forming this unlawful association.3. The main ground taken in the petition was that the impugned action was violative of their fundamental right to form associations or Unions conferred by Art. 19(1)(c) of the Constitution.4. In their reply-affidavit, the respondents averred that the Civilian Non-Combatants in the Defence Establishments were governed by the Army Act and were duly prohibited by Rules framed thereunder from joining or forming a Trade Union; that the associations in question were formed in breach of that prohibition, and were therefore, validly declared illegal.5. The learned Judge of the High Court, who tried the petition, held that the right of the appellants to form associations given by Art. 19(1) (c) of the Constitution, had been lawfully taken away. He accordingly dismissed the petition.The appellants carried an appeal to the appellate Bench of the High Court. The Bench dismissed the appeal holding that the impugnea action was not without jurisdiction.6. The main contention of Mr. K. R. Nambiyar, appearing for the appellants is that the members of the Unions represented by the appellants, though attached to the Defence Establishments, are civilians, designated as "Non-Combatants Un-Enrolled". They include cooks, chowkidars, laskars, barbers, carpenters, mechanics, boot makers, tailors etc. They are governed by the Civil Service Regulations for purposes of discipline, leave, pay etc. and are also eligible to serve upto the age of 60 years unlike that of the members of the Armed Forces. In view of these admitted facts, proceeds the argument, these categories of civilian employees, attached to the Defence Establishments, could not be validly called "members of the Armed Forces" covered by Art. 33 of the Constitution. The points sought to be made out are: that the members of the appellants Unions are not subject to the Army Act as the y do not fall under any of the categories enumerated in sub-clauses (a) to (i) of s. 2 of the Army Act, 1950, and that the impugned notifications are ultra vires the Army Act and are struck by Arts. 19(1)(c) and 33 of the Constitution.For reasons that follow, the contentions must be repelled.7. Article 33 of the Constitution provides an exception to the pre ceding Articles in Part III including Art. 19(1) (c). By Article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part III shall, in their application, to the members of the Armed Forces or Forces charged with the main tenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.In enacting the Army Act, 1950, in so far as it restricts or abrogates any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Art.33 of the Constitution. Section 2(1) of the Act enumerates the persons who are subject to the operation of this Act. According to sub-clause (i) of this section, persons governed by the Act, include "persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the regular army."8. The members of the Unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they are non-combatants and are in so me matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the "members of the Armed Forces" within the contemplation of Art. 33. Consequently, by virtue of s. 21 of the Army A ct, the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under Art. 19(1) (c).9. Rule 19(ii) of the Army Rules, 1954, imposes a restriction on the fundamental rights in these terms."No persons subject to the Act shall without the express sanction of the Central Government:(i) xx xx xx(ii) be a member of, or be associated in any way with, any trade union or lab our union, or any class of trade or labour unions "10. In exercise of its powers under s.4 of the Defence of India Act, the Government of India has by notification dated 11-2-1972, provided that all persons not being members of the Armed Force s of the Union, who are attached to or employed with or following the regular Army shall be subject to the military law. The Army Act, 1950, has also been made applicable to them. By another notification dated 23-2-1972, issued under r.79, of the Army Rules, civilian employees of the training establishments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act. Section 9 of the Army Act further empowers the Central Government to declare by notification, per sons not covered by s. (i) of s. 3 also as persons on active service.11. In view of these notifications issued under s.4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under Art. 19 (1) (c) of the Constitution. | 0[ds]For reasons that follow, the contentions must be repelled.The members of the Unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they areand are in so me matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the "members of the Armed Forces" within the contemplation of Art. 33. Consequently, by virtue of s. 21 of the Army A ct, the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under Art. 19(1) (c).In exercise of its powers under s.4 of the Defence of India Act, the Government of India has by notification datedprovided that all persons not being members of the Armed Force s of the Union, who are attached to or employed with or following the regular Army shall be subject to the military law. The Army Act, 1950, has also been made applicable to them. By another notification datedissued under r.79, of the Army Rules, civilian employees of the training establishments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act. Section 9 of the Army Act further empowers the Central Government to declare by notification, per sons not covered by s. (i) of s. 3 also as persons on active service.11. In view of these notifications issued under s.4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under Art. 19 (1) (c) of the Constitution. | 0 | 1,227 | 316 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the High Court to impugn the authority of the Commandants (Respondents 2 and 3 herein) in declaring the Unions, represented by the appellants as unlawful associations.2. The Registrar of Trade-Unions had issued Certificates of Registration to the f our Unions represented by the appellants between 1954 and 1970. The General Secretary of Class IV, Civil Employees Union, Bolaram, Secunderabad was informed, per letter dated 12-5-1971, by the Under Secretary of the Government of India, Ministry of Defence that their Unions could not be granted recognition as these employees being in the Training Establishments, were not entitled to form Unions. The Commandant also issued a notice to the appellants to show cause why disciplinary action be not taken against them for forming this unlawful association.3. The main ground taken in the petition was that the impugned action was violative of their fundamental right to form associations or Unions conferred by Art. 19(1)(c) of the Constitution.4. In their reply-affidavit, the respondents averred that the Civilian Non-Combatants in the Defence Establishments were governed by the Army Act and were duly prohibited by Rules framed thereunder from joining or forming a Trade Union; that the associations in question were formed in breach of that prohibition, and were therefore, validly declared illegal.5. The learned Judge of the High Court, who tried the petition, held that the right of the appellants to form associations given by Art. 19(1) (c) of the Constitution, had been lawfully taken away. He accordingly dismissed the petition.The appellants carried an appeal to the appellate Bench of the High Court. The Bench dismissed the appeal holding that the impugnea action was not without jurisdiction.6. The main contention of Mr. K. R. Nambiyar, appearing for the appellants is that the members of the Unions represented by the appellants, though attached to the Defence Establishments, are civilians, designated as "Non-Combatants Un-Enrolled". They include cooks, chowkidars, laskars, barbers, carpenters, mechanics, boot makers, tailors etc. They are governed by the Civil Service Regulations for purposes of discipline, leave, pay etc. and are also eligible to serve upto the age of 60 years unlike that of the members of the Armed Forces. In view of these admitted facts, proceeds the argument, these categories of civilian employees, attached to the Defence Establishments, could not be validly called "members of the Armed Forces" covered by Art. 33 of the Constitution. The points sought to be made out are: that the members of the appellants Unions are not subject to the Army Act as the y do not fall under any of the categories enumerated in sub-clauses (a) to (i) of s. 2 of the Army Act, 1950, and that the impugned notifications are ultra vires the Army Act and are struck by Arts. 19(1)(c) and 33 of the Constitution.For reasons that follow, the contentions must be repelled.7. Article 33 of the Constitution provides an exception to the pre ceding Articles in Part III including Art. 19(1) (c). By Article 33, Parliament is empowered to enact law determining to what extent any of the rights conferred by Part III shall, in their application, to the members of the Armed Forces or Forces charged with the main tenance of public order, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.In enacting the Army Act, 1950, in so far as it restricts or abrogates any of the fundamental rights of the members of the Armed Forces, Parliament derives its competence from Art.33 of the Constitution. Section 2(1) of the Act enumerates the persons who are subject to the operation of this Act. According to sub-clause (i) of this section, persons governed by the Act, include "persons not otherwise subject to military law who, on active service, in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the regular army."8. The members of the Unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they are non-combatants and are in so me matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the "members of the Armed Forces" within the contemplation of Art. 33. Consequently, by virtue of s. 21 of the Army A ct, the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under Art. 19(1) (c).9. Rule 19(ii) of the Army Rules, 1954, imposes a restriction on the fundamental rights in these terms."No persons subject to the Act shall without the express sanction of the Central Government:(i) xx xx xx(ii) be a member of, or be associated in any way with, any trade union or lab our union, or any class of trade or labour unions "10. In exercise of its powers under s.4 of the Defence of India Act, the Government of India has by notification dated 11-2-1972, provided that all persons not being members of the Armed Force s of the Union, who are attached to or employed with or following the regular Army shall be subject to the military law. The Army Act, 1950, has also been made applicable to them. By another notification dated 23-2-1972, issued under r.79, of the Army Rules, civilian employees of the training establishments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act. Section 9 of the Army Act further empowers the Central Government to declare by notification, per sons not covered by s. (i) of s. 3 also as persons on active service.11. In view of these notifications issued under s.4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under Art. 19 (1) (c) of the Constitution.
### Response:
0
### Explanation:
For reasons that follow, the contentions must be repelled.The members of the Unions represented by the appellants fall within this category. It is their duty to follow or accompany the Armed personnel on active service, or in camp or on the march. Although they areand are in so me matters governed by the Civil Service Regulations, yet they are integral to the Armed Forces. They answer the description of the "members of the Armed Forces" within the contemplation of Art. 33. Consequently, by virtue of s. 21 of the Army A ct, the Central Government was competent by notification to make rules restricting or curtailing their fundamental rights under Art. 19(1) (c).In exercise of its powers under s.4 of the Defence of India Act, the Government of India has by notification datedprovided that all persons not being members of the Armed Force s of the Union, who are attached to or employed with or following the regular Army shall be subject to the military law. The Army Act, 1950, has also been made applicable to them. By another notification datedissued under r.79, of the Army Rules, civilian employees of the training establishments and Military Hospitals have been taken out of the purview of the Industrial Disputes Act. Section 9 of the Army Act further empowers the Central Government to declare by notification, per sons not covered by s. (i) of s. 3 also as persons on active service.11. In view of these notifications issued under s.4 of the Defence of India Act and the Army Rules, the appellants can no longer claim any fundamental right under Art. 19 (1) (c) of the Constitution.
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Commissioner Of Income-Tax, Tamil Nadu Ii, Madras Vs. Madras Auto Service (P) Ltd. Etc | a substantial replacement of equipment 2. Expenditure may be treated as properly attributable to capital when it is made not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade... If what is got rid of by a lump sum payment is an annual business expense chargeable against revenue, the lump sum payment should equally be regarded as a business expense, but if the lump sum payment brings in a capital asset, then that puts the business on another footing altogether 3. Whether for the purpose of the expenditure, any capital was withdrawn, or, in other words, whether the object of incurring the expenditure was to employ what was taken in as capital of the business. Again, it is to be seen whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. * (underlining ours) Relying upon the second test enumerated above, learned counsel for the appellant had submitted that the assessee got enduring benefit of a capital nature by spending the amount because the assessee obtained a new building for a period of 39 years. The difficulty, however, in the present case, arises from the fact that this building was never to belong to the assessee. Right from inception, the building was of the ownership of the lessor. Therefore, by spending this money, the assessee did not acquire any capital asset. The only advantage which the assessee derived by spending the money was that it got the lease of a new building at a low rent. From the business point of view, therefore, the assessee got the benefit of reduced rent. The High Court has, therefore, rightly considered this as obtaining a business advantage. The expenditure is, therefore, to be treated as revenue expenditureAlthough there are a number of cases dealing with this question, we will limit ourselves to examining a few cases where the assessee, by expending money, created an asset of an enduring nature. However, the asset so created did not belong to the assessee. In such a situation the courts have held that the expenditure was for better carrying on of the business of the assessee and could be allowed as a revenue expenditure, looking to the circumstances of each of those cases. Thus, in Lakshmiji Sugar Mills Co. P. Ltd. v. CIT(SC), the assessee-company was carrying on the business of manufacture and sale of sugar. It paid to the Cane Development Council certain amounts by way of contribution for the construction and development of roads between the various sugarcane-producing centres and the sugar factories of the assessee. The roads remained the property of the Government. This court held that the expenditure was not of a capital nature and had to be allowed as an admissible deduction in computing the profits of the assessees business. The expenditure was incurred for the purpose of facilitating the running of the assessees motor vehicles and other means employed for transportation of sugarcane to its factories In the case of L. H. Sugar Factory and Oils Mills (P.) Ltd. v. CIT (SC), the assessee was carrying on the business of manufacture and sale of sugar. It had its factory in U. P. The assessee paid a contribution towards meeting the cost of construction of roads in the area around its factory under a sugarcane development scheme. The question was whether this amount was deductible in computing the assessees profits. The court held that it was. Because although the advantage secured was of long duration, it was not an advantage in the capital field because no tangible or intangible asset was acquired by the assessee; nor was there any addition to or expansion of the profit-making apparatus of the assessee. The amount was contributed for the purpose of facilitating the business of the assessee and making it more efficient and profitable. It was, therefore, revenue expenditureIn the case of CIT v. Associated Cement Companies Ltd. (SC), the respondent-company entered into an agreement to supply water to the municipality and provide water pipelines as also to supply electricity for street lighting and put up a transmission line for that purpose. The assessee also agreed to concrete the main road from the factory to the railway station. The amounts expended for these purposes were held to be revenue expenditure since the installations and accessories were the assets of the municipality and not of the assessee. The expenditure, therefore, did not result in creating any capital asset for the company. The advantage secured by the respondent was immunity from liability to pay municipal rates and taxes for a period of 15 years. This court said that had these liabilities been paid, the payments would have been on revenue account. Therefore, the advantage secured was in the field of revenue and not capital In the case of CIT v. Bombay Dyeing and Manufacturing Co. Ltd. (SC), the company contributed to the State Housing Board certain amounts for construction of tenements for its workers. The tenements remained the property of the Housing Board. It was held that the expenditure was incurred wholly and exclusively on the welfare of the employees and, therefore, constituted legitimate business expenditure. As the assessee-company acquired no ownership rights in the tenements, this court said that the expenditure was incurred merely with a view to carry on the business of the company more efficiently by having a contented labour force All these cases have looked upon expenditure which did bring about some kind of an enduring benefit to the company as a revenue expenditure when the expenditure did not bring into existence any capital asset for the company. The asset which was created belonged to somebody else and the company derived an enduring business advantage by expending the amount. In all these cases, the expenses have been looked upon as having been made for the purpose of conducting the business of the assessee more profitably or more successfully. | 0[ds]The question was whether this amount was deductible in computing the assessees profits. The court held that it was. Because although the advantage secured was of long duration, it was not an advantage in the capital field because no tangible or intangible asset was acquired by the assessee; nor was there any addition to or expansion of theg apparatus of the assessee. The amount was contributed for the purpose of facilitating the business of the assessee and making it more efficient and profitable. It was, therefore, revenue expenditureIn the case of CIT v. Associated Cement Companies Ltd. (SC), they entered into an agreement to supply water to the municipality and provide water pipelines as also to supply electricity for street lighting and put up a transmission line for that purpose. The assessee also agreed to concrete the main road from the factory to the railway station. The amounts expended for these purposes were held to be revenue expenditure since the installations and accessories were the assets of the municipality and not of the assessee. The expenditure, therefore, did not result in creating any capital asset for the company. The advantage secured by the respondent was immunity from liability to pay municipal rates and taxes for a period of 15 years. This court said that had these liabilities been paid, the payments would have been on revenue account. Therefore, the advantage secured was in the field of revenue and not capitalIn the case of CIT v. Bombay Dyeing and Manufacturing Co. Ltd. (SC), the company contributed to the State Housing Board certain amounts for construction of tenements for its workers. The tenements remained the property of the Housing Board. It was held that the expenditure was incurred wholly and exclusively on the welfare of the employees and, therefore, constituted legitimate business expenditure. As they acquired no ownership rights in the tenements, this court said that the expenditure was incurred merely with a view to carry on the business of the company more efficiently by having a contented labour forceAll these cases have looked upon expenditure which did bring about some kind of an enduring benefit to the company as a revenue expenditure when the expenditure did not bring into existence any capital asset for the company. The asset which was created belonged to somebody else and the company derived an enduring business advantage by expending the amount. In all these cases, the expenses have been looked upon as having been made for the purpose of conducting the business of the assessee more profitably or more successfully. | 0 | 2,517 | 463 | ### 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:
a substantial replacement of equipment 2. Expenditure may be treated as properly attributable to capital when it is made not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade... If what is got rid of by a lump sum payment is an annual business expense chargeable against revenue, the lump sum payment should equally be regarded as a business expense, but if the lump sum payment brings in a capital asset, then that puts the business on another footing altogether 3. Whether for the purpose of the expenditure, any capital was withdrawn, or, in other words, whether the object of incurring the expenditure was to employ what was taken in as capital of the business. Again, it is to be seen whether the expenditure incurred was part of the fixed capital of the business or part of its circulating capital. * (underlining ours) Relying upon the second test enumerated above, learned counsel for the appellant had submitted that the assessee got enduring benefit of a capital nature by spending the amount because the assessee obtained a new building for a period of 39 years. The difficulty, however, in the present case, arises from the fact that this building was never to belong to the assessee. Right from inception, the building was of the ownership of the lessor. Therefore, by spending this money, the assessee did not acquire any capital asset. The only advantage which the assessee derived by spending the money was that it got the lease of a new building at a low rent. From the business point of view, therefore, the assessee got the benefit of reduced rent. The High Court has, therefore, rightly considered this as obtaining a business advantage. The expenditure is, therefore, to be treated as revenue expenditureAlthough there are a number of cases dealing with this question, we will limit ourselves to examining a few cases where the assessee, by expending money, created an asset of an enduring nature. However, the asset so created did not belong to the assessee. In such a situation the courts have held that the expenditure was for better carrying on of the business of the assessee and could be allowed as a revenue expenditure, looking to the circumstances of each of those cases. Thus, in Lakshmiji Sugar Mills Co. P. Ltd. v. CIT(SC), the assessee-company was carrying on the business of manufacture and sale of sugar. It paid to the Cane Development Council certain amounts by way of contribution for the construction and development of roads between the various sugarcane-producing centres and the sugar factories of the assessee. The roads remained the property of the Government. This court held that the expenditure was not of a capital nature and had to be allowed as an admissible deduction in computing the profits of the assessees business. The expenditure was incurred for the purpose of facilitating the running of the assessees motor vehicles and other means employed for transportation of sugarcane to its factories In the case of L. H. Sugar Factory and Oils Mills (P.) Ltd. v. CIT (SC), the assessee was carrying on the business of manufacture and sale of sugar. It had its factory in U. P. The assessee paid a contribution towards meeting the cost of construction of roads in the area around its factory under a sugarcane development scheme. The question was whether this amount was deductible in computing the assessees profits. The court held that it was. Because although the advantage secured was of long duration, it was not an advantage in the capital field because no tangible or intangible asset was acquired by the assessee; nor was there any addition to or expansion of the profit-making apparatus of the assessee. The amount was contributed for the purpose of facilitating the business of the assessee and making it more efficient and profitable. It was, therefore, revenue expenditureIn the case of CIT v. Associated Cement Companies Ltd. (SC), the respondent-company entered into an agreement to supply water to the municipality and provide water pipelines as also to supply electricity for street lighting and put up a transmission line for that purpose. The assessee also agreed to concrete the main road from the factory to the railway station. The amounts expended for these purposes were held to be revenue expenditure since the installations and accessories were the assets of the municipality and not of the assessee. The expenditure, therefore, did not result in creating any capital asset for the company. The advantage secured by the respondent was immunity from liability to pay municipal rates and taxes for a period of 15 years. This court said that had these liabilities been paid, the payments would have been on revenue account. Therefore, the advantage secured was in the field of revenue and not capital In the case of CIT v. Bombay Dyeing and Manufacturing Co. Ltd. (SC), the company contributed to the State Housing Board certain amounts for construction of tenements for its workers. The tenements remained the property of the Housing Board. It was held that the expenditure was incurred wholly and exclusively on the welfare of the employees and, therefore, constituted legitimate business expenditure. As the assessee-company acquired no ownership rights in the tenements, this court said that the expenditure was incurred merely with a view to carry on the business of the company more efficiently by having a contented labour force All these cases have looked upon expenditure which did bring about some kind of an enduring benefit to the company as a revenue expenditure when the expenditure did not bring into existence any capital asset for the company. The asset which was created belonged to somebody else and the company derived an enduring business advantage by expending the amount. In all these cases, the expenses have been looked upon as having been made for the purpose of conducting the business of the assessee more profitably or more successfully.
### Response:
0
### Explanation:
The question was whether this amount was deductible in computing the assessees profits. The court held that it was. Because although the advantage secured was of long duration, it was not an advantage in the capital field because no tangible or intangible asset was acquired by the assessee; nor was there any addition to or expansion of theg apparatus of the assessee. The amount was contributed for the purpose of facilitating the business of the assessee and making it more efficient and profitable. It was, therefore, revenue expenditureIn the case of CIT v. Associated Cement Companies Ltd. (SC), they entered into an agreement to supply water to the municipality and provide water pipelines as also to supply electricity for street lighting and put up a transmission line for that purpose. The assessee also agreed to concrete the main road from the factory to the railway station. The amounts expended for these purposes were held to be revenue expenditure since the installations and accessories were the assets of the municipality and not of the assessee. The expenditure, therefore, did not result in creating any capital asset for the company. The advantage secured by the respondent was immunity from liability to pay municipal rates and taxes for a period of 15 years. This court said that had these liabilities been paid, the payments would have been on revenue account. Therefore, the advantage secured was in the field of revenue and not capitalIn the case of CIT v. Bombay Dyeing and Manufacturing Co. Ltd. (SC), the company contributed to the State Housing Board certain amounts for construction of tenements for its workers. The tenements remained the property of the Housing Board. It was held that the expenditure was incurred wholly and exclusively on the welfare of the employees and, therefore, constituted legitimate business expenditure. As they acquired no ownership rights in the tenements, this court said that the expenditure was incurred merely with a view to carry on the business of the company more efficiently by having a contented labour forceAll these cases have looked upon expenditure which did bring about some kind of an enduring benefit to the company as a revenue expenditure when the expenditure did not bring into existence any capital asset for the company. The asset which was created belonged to somebody else and the company derived an enduring business advantage by expending the amount. In all these cases, the expenses have been looked upon as having been made for the purpose of conducting the business of the assessee more profitably or more successfully.
|
Collector, Distt. Gwalior & Another Vs. Cine Exhibitors P. Ltd. & Another | without auction in the following cases: - (1) When the land in question is adjacent to the land of the applicant and will not be of any use to any person other than the applicant. (2) When it is decided to condone the encroachment of an encroacher and to grant the encroached area to the encroacher on permanent lease. (3) When the land in question will be used for religious charitable, educational, co-operative, public or social purposes. (4) Plots given to very poor persons in a locality where only poor persons live. (5) Any other land for which there are adequate reasons for foregoing auction, e.g., land required by the Madhya Pradesh Electricity Board, State Road Transport Corporation, etc. 14. Reservation of special plots. - At regular settlement all Government plots or sites which are likely to be valuable for any special reason, such as their situation near a line of railway or the like, or which in any scheme of development have been set aside as specially valuable or as being required for a public purpose are marked of by the Settlement Officer in consultation with the Collector as reserved and the disposal of all such plots will be subject to the sanction of the State Government upon such special terms as may be decided for each plot. All land within a radius of 100 yards of a railway station and all land within 40 yards of a railway station boundary should be reserved. There will necessarily be exceptions such as for instance where there is a lay out already sanctioned by Government the Collector will maintain a list of these plots and with the approval of the State Government will alter it as the changing circumstances of the town may demand." 19. The Revenue Book Circular also stipulates that the classification of land is done at the time of settlement. The Collector of the district has been bestowed with the power to make alterations in the settlement classifications on the ground that they have been incorrectly made or that the purpose for which the land was used had changed in the settlement. In such type of cases, Abadi lands are recorded as nazul lands and, accordingly, the vacant spaces are administered as nazul lands. The aforesaid schematic concept read with the language employed in the 1960 Act and the 1973 Act would clearly reveal that nazul land, unless notified, does not automatically get vested in any authority or trust. The State Government, from time to time, has been issuing notifications to the effect of vesting or transferring of nazul land to be part of improvement trust and giving advance possession to the Town Improvement Trust. That apart, the State Government has issued notifications framing guidelines for distribution of the Nazul plots. 20. It is not out of place to mention here that this Court in Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh and Ors (AIR 2011 SC 1834 ). had not approved the manner in which the State Government had granted the land belonging to the State in favour of the appellant therein. After referring to the Revenue Book Circular, this Court decried the action of the State Authorities in allotment of Nazul land without following the criteria and by treating it as State largesse wherein the public has an interest. After the said decision was rendered on 06.04.2011, the State of Madhya Pradesh, Department of Revenue, has issued Circular No. 6-53/2011-Nazul dated 8.8.2011 describing certain guidelines in the distribution of Nazul land. In the said circular, it has been stated that the said circular shall be treated as a part of Section 1 of the Revenue Book Circular. 21. We have referred to these aspects singularly to highlight that unless affirmative steps are taken by the State Government by issuing a notification changing the character of the land and transferring it in favour of any authority, corporation or municipality, it maintains its own character, i.e., nazul land. In the case at hand, the land is recorded as nazul land for the Public Works Department. Nothing has been brought on record that it had ever been notified for transfer in favour of the GDA. Thus analysed, the GDA never became the owner of the land or had the authority to deal with the land and, therefore, it could not have put the land to auction for any purpose whatsoever. Ergo, the first respondent cannot assert any right or advance any claim to remain in possession and run the cinema hall and that too after cancellation of the licence, solely on the basis of a lease granted by its lessor, a statutory authority, who had no right on the land for the simon pure reason that the ownership still remained with the State Government. When no right lies with the GDA in respect of the land in view of the conditions precedent as stipulated in the Revenue Book Circular not having been satisfied and the nature of the land has remained in a sustained state, no legal sanctity can be attached to the lease executed by it in favour of the Ist respondent. The grant is fundamentally ultra vires and hence, the respondent-company has to meet its Waterloo. 22. Quite apart from the above, it is condign to note that in a case of the present nature, the common law doctrine of public policy can be invoked. The said doctrine becomes enforceable when an action affects or offends public interest or where injury to the public at large is manifest. As is perceptible, the GDA could not have granted the lease of the property belonging to the State Government as it was Nazul land meant for the Public Works Department. The collective interest in the property could not have been jeopardised by usurpation of power/authority by the GDA. Such assumption of power by the GDA makes the whole action sans substratum and thereby a nullity. Needless to say, any grant has to have legal sanctity and legitimacy. | 1[ds]19. The Revenue Book Circular also stipulates that the classification of land is done at the time of settlement. The Collector of the district has been bestowed with the power to make alterations in the settlement classifications on the ground that they have been incorrectly made or that the purpose for which the land was used had changed in the settlement. In such type of cases, Abadi lands are recorded as nazul lands and, accordingly, the vacant spaces are administered as nazul lands. The aforesaid schematic concept read with the language employed in the 1960 Act and the 1973 Act would clearly reveal that nazul land, unless notified, does not automatically get vested in any authority or trust. The State Government, from time to time, has been issuing notifications to the effect of vesting or transferring of nazul land to be part of improvement trust and giving advance possession to the Town Improvement Trust. That apart, the State Government has issued notifications framing guidelines for distribution of the Nazul plots20. It is not out of place to mention here that this Court in Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh and Ors (AIR 2011 SC 1834 ). had not approved the manner in which the State Government had granted the land belonging to the State in favour of the appellant thereinAfter referring to the Revenue Book Circular, this Court decried the action of the State Authorities in allotment of Nazul land without following the criteria and by treating it as State largesse wherein the public has an interest. After the said decision was rendered on 06.04.2011, the State of Madhya Pradesh, Department of Revenue, has issued Circular No. 6-53/2011-Nazul dated 8.8.2011 describing certain guidelines in the distribution of Nazul land. In the said circular, it has been stated that the said circular shall be treated as a part of Section 1 of the Revenue Book Circular21. We have referred to these aspects singularly to highlight that unless affirmative steps are taken by the State Government by issuing a notification changing the character of the land and transferring it in favour of any authority, corporation or municipality, it maintains its own character, i.e., nazul land. In the case at hand, the land is recorded as nazul land for the Public Works Department. Nothing has been brought on record that it had ever been notified for transfer in favour of the GDA. Thus analysed, the GDA never became the owner of the land or had the authority to deal with the land and, therefore, it could not have put the land to auction for any purpose whatsoever. Ergo, the first respondent cannot assert any right or advance any claim to remain in possession and run the cinema hall and that too after cancellation of the licence, solely on the basis of a lease granted by its lessor, a statutory authority, who had no right on the land for the simon pure reason that the ownership still remained with the State Government. When no right lies with the GDA in respect of the land in view of the conditions precedent as stipulated in the Revenue Book Circular not having been satisfied and the nature of the land has remained in a sustained state, no legal sanctity can be attached to the lease executed by it in favour of the Ist respondent. The grant is fundamentally ultra vires and hence, the respondent-company has to meet its Waterloo22. Quite apart from the above, it is condign to note that in a case of the present nature, the common law doctrine of public policy can be invoked. The said doctrine becomes enforceable when an action affects or offends public interest or where injury to the public at large is manifest. As is perceptible, the GDA could not have granted the lease of the property belonging to the State Government as it was Nazul land meant for the Public Works Department. The collective interest in the property could not have been jeopardised by usurpation of power/authority by the GDA. Such assumption of power by the GDA makes the whole action sans substratum and thereby a nullity. Needless to say, any grant has to have legal sanctity and legitimacy. | 1 | 6,546 | 765 | ### 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:
without auction in the following cases: - (1) When the land in question is adjacent to the land of the applicant and will not be of any use to any person other than the applicant. (2) When it is decided to condone the encroachment of an encroacher and to grant the encroached area to the encroacher on permanent lease. (3) When the land in question will be used for religious charitable, educational, co-operative, public or social purposes. (4) Plots given to very poor persons in a locality where only poor persons live. (5) Any other land for which there are adequate reasons for foregoing auction, e.g., land required by the Madhya Pradesh Electricity Board, State Road Transport Corporation, etc. 14. Reservation of special plots. - At regular settlement all Government plots or sites which are likely to be valuable for any special reason, such as their situation near a line of railway or the like, or which in any scheme of development have been set aside as specially valuable or as being required for a public purpose are marked of by the Settlement Officer in consultation with the Collector as reserved and the disposal of all such plots will be subject to the sanction of the State Government upon such special terms as may be decided for each plot. All land within a radius of 100 yards of a railway station and all land within 40 yards of a railway station boundary should be reserved. There will necessarily be exceptions such as for instance where there is a lay out already sanctioned by Government the Collector will maintain a list of these plots and with the approval of the State Government will alter it as the changing circumstances of the town may demand." 19. The Revenue Book Circular also stipulates that the classification of land is done at the time of settlement. The Collector of the district has been bestowed with the power to make alterations in the settlement classifications on the ground that they have been incorrectly made or that the purpose for which the land was used had changed in the settlement. In such type of cases, Abadi lands are recorded as nazul lands and, accordingly, the vacant spaces are administered as nazul lands. The aforesaid schematic concept read with the language employed in the 1960 Act and the 1973 Act would clearly reveal that nazul land, unless notified, does not automatically get vested in any authority or trust. The State Government, from time to time, has been issuing notifications to the effect of vesting or transferring of nazul land to be part of improvement trust and giving advance possession to the Town Improvement Trust. That apart, the State Government has issued notifications framing guidelines for distribution of the Nazul plots. 20. It is not out of place to mention here that this Court in Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh and Ors (AIR 2011 SC 1834 ). had not approved the manner in which the State Government had granted the land belonging to the State in favour of the appellant therein. After referring to the Revenue Book Circular, this Court decried the action of the State Authorities in allotment of Nazul land without following the criteria and by treating it as State largesse wherein the public has an interest. After the said decision was rendered on 06.04.2011, the State of Madhya Pradesh, Department of Revenue, has issued Circular No. 6-53/2011-Nazul dated 8.8.2011 describing certain guidelines in the distribution of Nazul land. In the said circular, it has been stated that the said circular shall be treated as a part of Section 1 of the Revenue Book Circular. 21. We have referred to these aspects singularly to highlight that unless affirmative steps are taken by the State Government by issuing a notification changing the character of the land and transferring it in favour of any authority, corporation or municipality, it maintains its own character, i.e., nazul land. In the case at hand, the land is recorded as nazul land for the Public Works Department. Nothing has been brought on record that it had ever been notified for transfer in favour of the GDA. Thus analysed, the GDA never became the owner of the land or had the authority to deal with the land and, therefore, it could not have put the land to auction for any purpose whatsoever. Ergo, the first respondent cannot assert any right or advance any claim to remain in possession and run the cinema hall and that too after cancellation of the licence, solely on the basis of a lease granted by its lessor, a statutory authority, who had no right on the land for the simon pure reason that the ownership still remained with the State Government. When no right lies with the GDA in respect of the land in view of the conditions precedent as stipulated in the Revenue Book Circular not having been satisfied and the nature of the land has remained in a sustained state, no legal sanctity can be attached to the lease executed by it in favour of the Ist respondent. The grant is fundamentally ultra vires and hence, the respondent-company has to meet its Waterloo. 22. Quite apart from the above, it is condign to note that in a case of the present nature, the common law doctrine of public policy can be invoked. The said doctrine becomes enforceable when an action affects or offends public interest or where injury to the public at large is manifest. As is perceptible, the GDA could not have granted the lease of the property belonging to the State Government as it was Nazul land meant for the Public Works Department. The collective interest in the property could not have been jeopardised by usurpation of power/authority by the GDA. Such assumption of power by the GDA makes the whole action sans substratum and thereby a nullity. Needless to say, any grant has to have legal sanctity and legitimacy.
### Response:
1
### Explanation:
19. The Revenue Book Circular also stipulates that the classification of land is done at the time of settlement. The Collector of the district has been bestowed with the power to make alterations in the settlement classifications on the ground that they have been incorrectly made or that the purpose for which the land was used had changed in the settlement. In such type of cases, Abadi lands are recorded as nazul lands and, accordingly, the vacant spaces are administered as nazul lands. The aforesaid schematic concept read with the language employed in the 1960 Act and the 1973 Act would clearly reveal that nazul land, unless notified, does not automatically get vested in any authority or trust. The State Government, from time to time, has been issuing notifications to the effect of vesting or transferring of nazul land to be part of improvement trust and giving advance possession to the Town Improvement Trust. That apart, the State Government has issued notifications framing guidelines for distribution of the Nazul plots20. It is not out of place to mention here that this Court in Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh and Ors (AIR 2011 SC 1834 ). had not approved the manner in which the State Government had granted the land belonging to the State in favour of the appellant thereinAfter referring to the Revenue Book Circular, this Court decried the action of the State Authorities in allotment of Nazul land without following the criteria and by treating it as State largesse wherein the public has an interest. After the said decision was rendered on 06.04.2011, the State of Madhya Pradesh, Department of Revenue, has issued Circular No. 6-53/2011-Nazul dated 8.8.2011 describing certain guidelines in the distribution of Nazul land. In the said circular, it has been stated that the said circular shall be treated as a part of Section 1 of the Revenue Book Circular21. We have referred to these aspects singularly to highlight that unless affirmative steps are taken by the State Government by issuing a notification changing the character of the land and transferring it in favour of any authority, corporation or municipality, it maintains its own character, i.e., nazul land. In the case at hand, the land is recorded as nazul land for the Public Works Department. Nothing has been brought on record that it had ever been notified for transfer in favour of the GDA. Thus analysed, the GDA never became the owner of the land or had the authority to deal with the land and, therefore, it could not have put the land to auction for any purpose whatsoever. Ergo, the first respondent cannot assert any right or advance any claim to remain in possession and run the cinema hall and that too after cancellation of the licence, solely on the basis of a lease granted by its lessor, a statutory authority, who had no right on the land for the simon pure reason that the ownership still remained with the State Government. When no right lies with the GDA in respect of the land in view of the conditions precedent as stipulated in the Revenue Book Circular not having been satisfied and the nature of the land has remained in a sustained state, no legal sanctity can be attached to the lease executed by it in favour of the Ist respondent. The grant is fundamentally ultra vires and hence, the respondent-company has to meet its Waterloo22. Quite apart from the above, it is condign to note that in a case of the present nature, the common law doctrine of public policy can be invoked. The said doctrine becomes enforceable when an action affects or offends public interest or where injury to the public at large is manifest. As is perceptible, the GDA could not have granted the lease of the property belonging to the State Government as it was Nazul land meant for the Public Works Department. The collective interest in the property could not have been jeopardised by usurpation of power/authority by the GDA. Such assumption of power by the GDA makes the whole action sans substratum and thereby a nullity. Needless to say, any grant has to have legal sanctity and legitimacy.
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Controller Of Estate Duty, Gujarat Vs. Hussainbhai Mohmedbhai Badri | among the children, and to pay the remaining ninth to certain other persons. The wife died after the Finance Act, 1894, had come into operation. The Court held that the estate duty was only payable on the one-ninth share of the excess of the trust fund over the specified sum and on the benefit which accrued to the children by the cesser of the annuity, since that was the only property passing on the death of the wife. Dealing with the question of law arising for decision Kennedy J. observed:"There is no question that, looking to the substance of the disposition which is in question, as to 96001, the children took an interest on the death of the testator which was qua that sum a definite ascertained profit which vested in them, and as to which each of the eight children got his eighth share. Of course the whole estate was subject to the annuity, but the only uncertainty in case of the residue was as regards the amount of anything beyond 96001. It is not until the death of the widow that the residue over 96001. passes to the children and the grandchildren in the way provided for by the will. Therefore, if it does not pass until then, it cannot be ascertained until then, for it cannot be known until then that there will be any such residue. Otherwise the matter seems quite clear. The property as regards the 96001, was property which passed on the death of the testator, and not on the death of the testators widow, and therefore is not liable to this claim to the extent of the eight-ninths."17. A similar view was expressed by Phillimore J. He observed:"It seems to me obvious that, as regards the legacies and as regards eight-ninths of the residue, or, as the legacies go to the same people, we may say as regards eight-ninths of the property, it passed at once to the children subject to the burden of the annuity; and if Mr. Thomas Townsend had diet in the year of grace 1900 or l90l, and these had been, not children, but nephews or great-nephews liable to pay legacy duty, I do not think the Inland Revenue officials would willingly have accepted the suggestion that legacy duty would not become payable until after the death of his widow."18. The rule laid down in Townsends case is equally applicable to the facts of the present case. In our opinion what is relevant in determining the scope of the expression "property passing on the death of the deceased" is the change in the beneficial interest and not title. This conclusion of ours receives support from the decision of this Court in Mahendra Rambhai Patel v. Controller of Estate Duty Gujarat 63 ITR 645 - (AIR 1967 SC 578 ).There in by a deed of trust dated June 28, 194l one Rambhai settled 160 fully paid up shares in a company in trust for the benefit of his sons Manubhai and Mahendra in equal shares. The trustees were to stand possessed of the shares until each of the beneficiaries completed the age of 25 years and apply in their discretion the whole or part of the profits arising therefrom for the maintenance and advancement of the beneficiaries and to invest the surplus. If and when each of the beneficiaries completed the age of 25 years the trustees were to transfer out of the 160 shares his portion of the shares and the accumulation or any other investment in lieu thereof to him absolutely. If any of the beneficiaries should die before completing the age of 25 years, the shares settled on him (but not the accumulated surplus income) were to devolve on certain persons. The beneficiaries had no right to mortgage or create any incumbrance or sell it until each of them completed the age of 25 years. Manubhai died on June 7, 1954, a minor and unmarried; and the principal value of his interest in the settled property was brought to estate duty in the hands of his brother. The accountable person challenged the validity of the levy. He contended that no property passed on the death of his brother Manubhai. This contention was rejected both by the High Court and this Court, This Court held that though the shares were not to be delivered to Manubhai until he attained the age of 25 years, the shares belonged to him since the execution of the trust deed and he was also beneficially entitled to the income from those shares. In the course of his Judgment Shah J. (as he then was) speaking for the Court observed at p. 649:"The interest of Manubhai in the shares and in the accumulated income was property within the meaning of Section 2 (15). That property did, as we have already pointed out, vest in ownership in Manubhai immediately on the execution of the deed of trust. On Manubhai dying, unmarried, the property as to the shares under clause 7 of the deed and as to the accumulated income under the law of inheritance devolved on his brother Mahender. On Manubhais death, there was under the deed of trust a change in the person who was beneficially interested in the shares."This decision clearly lays down that in determining whether a particular property passed on the death of a deceased what has to be seen is whether that deceased had any beneficial interest in that property and whether that interest passed to someone on his death. The deceased Safiabai had only 1/3rd share in the income of the trust property. That interest undoubtedly passed on her death. In the remaining 2/3rds income, she had no interest and the same did not pass on her death. Her title to the property as a trustee was purely a personal right. It had no value in terms of money. It conferred no right on her. It only imposed some duties. Such a right cannot be considered as property, | 0[ds]15. From the facts mentioned earlier, it is seen that ever since the death of the settlor, beneficial interest in 2/3rds of the income of the trust property vested on persons other than the deceased. The deceased was entitled only to a 1/3rd share in the income of the trust property. In substance, only 1/3rd interest in the trust property passed on her death. It is true, that after the death of the deceased, the accountable person as well as the other heirs of the settlor who had only a beneficial interest in the income of the trust property became the legal owners of the trust property. This change in the nature of the rights possessed by some of the beneficiaries under the trust deed does not enlarge either the extent or value of the property that passed on the death of the deceased.The rule laid down in Townsends case is equally applicable to the facts of the present case. In our opinion what is relevant in determining the scope of the expression "property passing on the death of the deceased" is the change in the beneficial interest and not title. This conclusion of ours receives support from the decision of this Court in Mahendra Rambhai Patel v. Controller of Estate Duty Gujarat 63 ITR 645 - (AIR 1967 SC 578 ).There in by a deed of trust dated June 28, 194l one Rambhai settled 160 fully paid up shares in a company in trust for the benefit of his sons Manubhai and Mahendra in equal shares. The trustees were to stand possessed of the shares until each of the beneficiaries completed the age of 25 years and apply in their discretion the whole or part of the profits arising therefrom for the maintenance and advancement of the beneficiaries and to invest the surplus. If and when each of the beneficiaries completed the age of 25 years the trustees were to transfer out of the 160 shares his portion of the shares and the accumulation or any other investment in lieu thereof to him absolutely. If any of the beneficiaries should die before completing the age of 25 years, the shares settled on him (but not the accumulated surplus income) were to devolve on certain persons. The beneficiaries had no right to mortgage or create any incumbrance or sell it until each of them completed the age of 25 years. Manubhai died on June 7, 1954, a minor and unmarried; and the principal value of his interest in the settled property was brought to estate duty in the hands of his brother. The accountable person challenged the validity of the levy. He contended that no property passed on the death of his brother Manubhai. This contention was rejected both by the High Court and this Court, This Court held that though the shares were not to be delivered to Manubhai until he attained the age of 25 years, the shares belonged to him since the execution of the trust deed and he was also beneficially entitled to the income from those shares. In the course of his Judgment Shah J. (as he then was) speaking for the Court observed at p.interest of Manubhai in the shares and in the accumulated income was property within the meaning of Section 2 (15). That property did, as we have already pointed out, vest in ownership in Manubhai immediately on the execution of the deed of trust. On Manubhai dying, unmarried, the property as to the shares under clause 7 of the deed and as to the accumulated income under the law of inheritance devolved on his brother Mahender. On Manubhais death, there was under the deed of trust a change in the person who was beneficially interested in thedecision clearly lays down that in determining whether a particular property passed on the death of a deceased what has to be seen is whether that deceased had any beneficial interest in that property and whether that interest passed to someone on his death. The deceased Safiabai had only 1/3rd share in the income of the trust property. That interest undoubtedly passed on her death. In the remaining 2/3rds income, she had no interest and the same did not pass on her death. Her title to the property as a trustee was purely a personal right. It had no value in terms of money. It conferred no right on her. It only imposed some duties. Such a right cannot be considered as property, | 0 | 3,285 | 810 | ### 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:
among the children, and to pay the remaining ninth to certain other persons. The wife died after the Finance Act, 1894, had come into operation. The Court held that the estate duty was only payable on the one-ninth share of the excess of the trust fund over the specified sum and on the benefit which accrued to the children by the cesser of the annuity, since that was the only property passing on the death of the wife. Dealing with the question of law arising for decision Kennedy J. observed:"There is no question that, looking to the substance of the disposition which is in question, as to 96001, the children took an interest on the death of the testator which was qua that sum a definite ascertained profit which vested in them, and as to which each of the eight children got his eighth share. Of course the whole estate was subject to the annuity, but the only uncertainty in case of the residue was as regards the amount of anything beyond 96001. It is not until the death of the widow that the residue over 96001. passes to the children and the grandchildren in the way provided for by the will. Therefore, if it does not pass until then, it cannot be ascertained until then, for it cannot be known until then that there will be any such residue. Otherwise the matter seems quite clear. The property as regards the 96001, was property which passed on the death of the testator, and not on the death of the testators widow, and therefore is not liable to this claim to the extent of the eight-ninths."17. A similar view was expressed by Phillimore J. He observed:"It seems to me obvious that, as regards the legacies and as regards eight-ninths of the residue, or, as the legacies go to the same people, we may say as regards eight-ninths of the property, it passed at once to the children subject to the burden of the annuity; and if Mr. Thomas Townsend had diet in the year of grace 1900 or l90l, and these had been, not children, but nephews or great-nephews liable to pay legacy duty, I do not think the Inland Revenue officials would willingly have accepted the suggestion that legacy duty would not become payable until after the death of his widow."18. The rule laid down in Townsends case is equally applicable to the facts of the present case. In our opinion what is relevant in determining the scope of the expression "property passing on the death of the deceased" is the change in the beneficial interest and not title. This conclusion of ours receives support from the decision of this Court in Mahendra Rambhai Patel v. Controller of Estate Duty Gujarat 63 ITR 645 - (AIR 1967 SC 578 ).There in by a deed of trust dated June 28, 194l one Rambhai settled 160 fully paid up shares in a company in trust for the benefit of his sons Manubhai and Mahendra in equal shares. The trustees were to stand possessed of the shares until each of the beneficiaries completed the age of 25 years and apply in their discretion the whole or part of the profits arising therefrom for the maintenance and advancement of the beneficiaries and to invest the surplus. If and when each of the beneficiaries completed the age of 25 years the trustees were to transfer out of the 160 shares his portion of the shares and the accumulation or any other investment in lieu thereof to him absolutely. If any of the beneficiaries should die before completing the age of 25 years, the shares settled on him (but not the accumulated surplus income) were to devolve on certain persons. The beneficiaries had no right to mortgage or create any incumbrance or sell it until each of them completed the age of 25 years. Manubhai died on June 7, 1954, a minor and unmarried; and the principal value of his interest in the settled property was brought to estate duty in the hands of his brother. The accountable person challenged the validity of the levy. He contended that no property passed on the death of his brother Manubhai. This contention was rejected both by the High Court and this Court, This Court held that though the shares were not to be delivered to Manubhai until he attained the age of 25 years, the shares belonged to him since the execution of the trust deed and he was also beneficially entitled to the income from those shares. In the course of his Judgment Shah J. (as he then was) speaking for the Court observed at p. 649:"The interest of Manubhai in the shares and in the accumulated income was property within the meaning of Section 2 (15). That property did, as we have already pointed out, vest in ownership in Manubhai immediately on the execution of the deed of trust. On Manubhai dying, unmarried, the property as to the shares under clause 7 of the deed and as to the accumulated income under the law of inheritance devolved on his brother Mahender. On Manubhais death, there was under the deed of trust a change in the person who was beneficially interested in the shares."This decision clearly lays down that in determining whether a particular property passed on the death of a deceased what has to be seen is whether that deceased had any beneficial interest in that property and whether that interest passed to someone on his death. The deceased Safiabai had only 1/3rd share in the income of the trust property. That interest undoubtedly passed on her death. In the remaining 2/3rds income, she had no interest and the same did not pass on her death. Her title to the property as a trustee was purely a personal right. It had no value in terms of money. It conferred no right on her. It only imposed some duties. Such a right cannot be considered as property,
### Response:
0
### Explanation:
15. From the facts mentioned earlier, it is seen that ever since the death of the settlor, beneficial interest in 2/3rds of the income of the trust property vested on persons other than the deceased. The deceased was entitled only to a 1/3rd share in the income of the trust property. In substance, only 1/3rd interest in the trust property passed on her death. It is true, that after the death of the deceased, the accountable person as well as the other heirs of the settlor who had only a beneficial interest in the income of the trust property became the legal owners of the trust property. This change in the nature of the rights possessed by some of the beneficiaries under the trust deed does not enlarge either the extent or value of the property that passed on the death of the deceased.The rule laid down in Townsends case is equally applicable to the facts of the present case. In our opinion what is relevant in determining the scope of the expression "property passing on the death of the deceased" is the change in the beneficial interest and not title. This conclusion of ours receives support from the decision of this Court in Mahendra Rambhai Patel v. Controller of Estate Duty Gujarat 63 ITR 645 - (AIR 1967 SC 578 ).There in by a deed of trust dated June 28, 194l one Rambhai settled 160 fully paid up shares in a company in trust for the benefit of his sons Manubhai and Mahendra in equal shares. The trustees were to stand possessed of the shares until each of the beneficiaries completed the age of 25 years and apply in their discretion the whole or part of the profits arising therefrom for the maintenance and advancement of the beneficiaries and to invest the surplus. If and when each of the beneficiaries completed the age of 25 years the trustees were to transfer out of the 160 shares his portion of the shares and the accumulation or any other investment in lieu thereof to him absolutely. If any of the beneficiaries should die before completing the age of 25 years, the shares settled on him (but not the accumulated surplus income) were to devolve on certain persons. The beneficiaries had no right to mortgage or create any incumbrance or sell it until each of them completed the age of 25 years. Manubhai died on June 7, 1954, a minor and unmarried; and the principal value of his interest in the settled property was brought to estate duty in the hands of his brother. The accountable person challenged the validity of the levy. He contended that no property passed on the death of his brother Manubhai. This contention was rejected both by the High Court and this Court, This Court held that though the shares were not to be delivered to Manubhai until he attained the age of 25 years, the shares belonged to him since the execution of the trust deed and he was also beneficially entitled to the income from those shares. In the course of his Judgment Shah J. (as he then was) speaking for the Court observed at p.interest of Manubhai in the shares and in the accumulated income was property within the meaning of Section 2 (15). That property did, as we have already pointed out, vest in ownership in Manubhai immediately on the execution of the deed of trust. On Manubhai dying, unmarried, the property as to the shares under clause 7 of the deed and as to the accumulated income under the law of inheritance devolved on his brother Mahender. On Manubhais death, there was under the deed of trust a change in the person who was beneficially interested in thedecision clearly lays down that in determining whether a particular property passed on the death of a deceased what has to be seen is whether that deceased had any beneficial interest in that property and whether that interest passed to someone on his death. The deceased Safiabai had only 1/3rd share in the income of the trust property. That interest undoubtedly passed on her death. In the remaining 2/3rds income, she had no interest and the same did not pass on her death. Her title to the property as a trustee was purely a personal right. It had no value in terms of money. It conferred no right on her. It only imposed some duties. Such a right cannot be considered as property,
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Gorakh Nath Dube Vs. Hari Narain Singh & Ors | to the validity of sale deeds, gift deeds, and wills could be gone into in proceedings before the consolidation authorities, because such questions naturally and necessarily arose and had to be decided in the course of adjudications on rights or interests in land which are the subject matter of consolidation proceedings.We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiffs claim is that the sale of his half share by his uncle was invalid, inoperative, and void, such a claim could be adjudicated upon by consolidation courts. We find ourselves in agreement with the view expressed by the Division Bench of the Allahabad High Court in Jagarnath Shuklas case, 1969 All LJ 768 (supra). that it is the substance of the claim and not its form which is decisive.6. Learned counsel for the Plaintiff-Appellant tried to urge before us, on the strength of a copy of a judgment of the Settlement Officer, Consolidations Jaunpur dated 24-1-1968, filed with an affidavit. in opposition to Defendant-Respondents application under Sections 4 and : 5 of the Act made before us, that the Settlement Officer himself had held that consolidation authorities had no jurisdiction to decide the case now before us by special leave. After going through the order of the Settlement Officer, we find that he did not reach any such conclusion. All that the Settlement Officer did was to stay the appeal pending before him until the appeal, by special leave pending before this Court is decided here. We may observe that this was a very correct and proper course for the Settlement Officer to adopt. He did not make any observations about the absence of his own jurisdiction. And, he could not properly make any observation about the existence or absence of the jurisdiction of this Court to decide the merits of the case pending before this court because this question was likely to arise before us and has been raised in the case before us now. It is obvious to us that the result of the order of the Settlement Officer is that, after the disposal of this appeal by special leave by us, the appeal pending before the Settlement Officer can be revived and an appropriate decision on merits on respective claims taken by him in view of Section 52, sub-sec. (2) of the Act, which provides, inter alia, that, despite a notification under Section 52 (l) of the Act, closing consolidation operations in a village, cases or proceedings pending under the Act on the date of the issue of notification under Section 52 (1) will be decided as though consolidation operations had not terminated. The result is that the parties are not deprived of an appropriate forum for a decision on the merits of the case before us about which we deliberately refrain from making any observations.7. It may be mentioned here that Shri J. P. Goyal, appearing for the Plaintiff-Appellant, had also contended that the Defendant-Respondents were precluded from raising the preliminary objection as they had not appealed from the order of the High Court dismissing their application under Sections 4 and 5 of the Act. We find that the merits of the question raised by the application were dealt with in the body of the judgment allowing the second appeal and dismissing the plaintiffs suit which is under appeal before us. The Defendant-Respondents are only seeking to support the Judgment of dismissal of the suit on another ground which was available. It is true that there is a very short separate order of the High Court also on the application of the Defendant-Respondents in the High Court under Sections 4 and 5 of the Act stating that the application is dismissed for the reasons given in the body of the judgment in the case. We, however, think that the Defendant-Respondents were justified in not appealing separately from it as there could be no res judicata against them when the plaintiffs suit was dismissed by the High Court. It has been rightly contended, on behalf of the Defendant-Respondents, that, as they had secured their object, which was the dismissal of the suit, there was nothing left for them to appeal against.8. Upon the facts and circumstances mentioned above, we think that the preliminary objection of the Defendant-Respondents, in support of which they have filed a separate application in this Court also, uncles Sections 4 and 5 of the Act, has to be accepted for the reasons given above. But, we also think that there is some force in the objection on behalf of the Plaintiff-Appellant that, we allow the decree of the High Court to stand, the disposal of the claims on merits by the consolidation authority may be hampered. | 1[ds]After going through the order of the Settlement Officer, we find that he did not reach any such conclusion. All that the Settlement Officer did was to stay the appeal pending before him until the appeal, by special leave pending before this Court is decided here. We may observe that this was a very correct and proper course for the Settlement Officer to adopt. He did not make any observations about the absence of his own jurisdiction. And, he could not properly make any observation about the existence or absence of the jurisdiction of this Court to decide the merits of the case pending before this court because this question was likely to arise before us and has been raised in the case before us now. It is obvious to us that the result of the order of the Settlement Officer is that, after the disposal of this appeal by special leave by us, the appeal pending before the Settlement Officer can be revived and an appropriate decision on merits on respective claims taken by him in view of Section 52, sub-sec. (2) of the Act, which provides, inter alia, that, despite a notification under Section 52 (l) of the Act, closing consolidation operations in a village, cases or proceedings pending under the Act on the date of the issue of notification under Section 52 (1) will be decided as though consolidation operations had not terminated. The result is that the parties are not deprived of an appropriate forum for a decision on the merits of the case before us about which we deliberately refrain from making anyfind that the merits of the question raised by the application were dealt with in the body of the judgment allowing the second appeal and dismissing the plaintiffs suit which is under appeal before us. The Defendant-Respondents are only seeking to support the Judgment of dismissal of the suit on another ground which was available. It is true that there is a very short separate order of the High Court also on the application of the Defendant-Respondents in the High Court under Sections 4 and 5 of the Act stating that the application is dismissed for the reasons given in the body of the judgment in the case. We, however, think that the Defendant-Respondents were justified in not appealing separately from it as there could be no res judicata against them when the plaintiffs suit was dismissed by the High Court. It has been rightly contended, on behalf of the Defendant-Respondents, that, as they had secured their object, which was the dismissal of the suit, there was nothing left for them to appeal against.8. Upon the facts and circumstances mentioned above, we think that the preliminary objection of the Defendant-Respondents, in support of which they have filed a separate application in this Court also, uncles Sections 4 and 5 of the Act, has to be accepted for the reasons given above. But, we also think that there is some force in the objection on behalf of the Plaintiff-Appellant that, we allow the decree of the High Court to stand, the disposal of the claims on merits by the consolidation authority may be hampered. | 1 | 2,168 | 580 | ### Instruction:
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to the validity of sale deeds, gift deeds, and wills could be gone into in proceedings before the consolidation authorities, because such questions naturally and necessarily arose and had to be decided in the course of adjudications on rights or interests in land which are the subject matter of consolidation proceedings.We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us, the plaintiffs claim is that the sale of his half share by his uncle was invalid, inoperative, and void, such a claim could be adjudicated upon by consolidation courts. We find ourselves in agreement with the view expressed by the Division Bench of the Allahabad High Court in Jagarnath Shuklas case, 1969 All LJ 768 (supra). that it is the substance of the claim and not its form which is decisive.6. Learned counsel for the Plaintiff-Appellant tried to urge before us, on the strength of a copy of a judgment of the Settlement Officer, Consolidations Jaunpur dated 24-1-1968, filed with an affidavit. in opposition to Defendant-Respondents application under Sections 4 and : 5 of the Act made before us, that the Settlement Officer himself had held that consolidation authorities had no jurisdiction to decide the case now before us by special leave. After going through the order of the Settlement Officer, we find that he did not reach any such conclusion. All that the Settlement Officer did was to stay the appeal pending before him until the appeal, by special leave pending before this Court is decided here. We may observe that this was a very correct and proper course for the Settlement Officer to adopt. He did not make any observations about the absence of his own jurisdiction. And, he could not properly make any observation about the existence or absence of the jurisdiction of this Court to decide the merits of the case pending before this court because this question was likely to arise before us and has been raised in the case before us now. It is obvious to us that the result of the order of the Settlement Officer is that, after the disposal of this appeal by special leave by us, the appeal pending before the Settlement Officer can be revived and an appropriate decision on merits on respective claims taken by him in view of Section 52, sub-sec. (2) of the Act, which provides, inter alia, that, despite a notification under Section 52 (l) of the Act, closing consolidation operations in a village, cases or proceedings pending under the Act on the date of the issue of notification under Section 52 (1) will be decided as though consolidation operations had not terminated. The result is that the parties are not deprived of an appropriate forum for a decision on the merits of the case before us about which we deliberately refrain from making any observations.7. It may be mentioned here that Shri J. P. Goyal, appearing for the Plaintiff-Appellant, had also contended that the Defendant-Respondents were precluded from raising the preliminary objection as they had not appealed from the order of the High Court dismissing their application under Sections 4 and 5 of the Act. We find that the merits of the question raised by the application were dealt with in the body of the judgment allowing the second appeal and dismissing the plaintiffs suit which is under appeal before us. The Defendant-Respondents are only seeking to support the Judgment of dismissal of the suit on another ground which was available. It is true that there is a very short separate order of the High Court also on the application of the Defendant-Respondents in the High Court under Sections 4 and 5 of the Act stating that the application is dismissed for the reasons given in the body of the judgment in the case. We, however, think that the Defendant-Respondents were justified in not appealing separately from it as there could be no res judicata against them when the plaintiffs suit was dismissed by the High Court. It has been rightly contended, on behalf of the Defendant-Respondents, that, as they had secured their object, which was the dismissal of the suit, there was nothing left for them to appeal against.8. Upon the facts and circumstances mentioned above, we think that the preliminary objection of the Defendant-Respondents, in support of which they have filed a separate application in this Court also, uncles Sections 4 and 5 of the Act, has to be accepted for the reasons given above. But, we also think that there is some force in the objection on behalf of the Plaintiff-Appellant that, we allow the decree of the High Court to stand, the disposal of the claims on merits by the consolidation authority may be hampered.
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After going through the order of the Settlement Officer, we find that he did not reach any such conclusion. All that the Settlement Officer did was to stay the appeal pending before him until the appeal, by special leave pending before this Court is decided here. We may observe that this was a very correct and proper course for the Settlement Officer to adopt. He did not make any observations about the absence of his own jurisdiction. And, he could not properly make any observation about the existence or absence of the jurisdiction of this Court to decide the merits of the case pending before this court because this question was likely to arise before us and has been raised in the case before us now. It is obvious to us that the result of the order of the Settlement Officer is that, after the disposal of this appeal by special leave by us, the appeal pending before the Settlement Officer can be revived and an appropriate decision on merits on respective claims taken by him in view of Section 52, sub-sec. (2) of the Act, which provides, inter alia, that, despite a notification under Section 52 (l) of the Act, closing consolidation operations in a village, cases or proceedings pending under the Act on the date of the issue of notification under Section 52 (1) will be decided as though consolidation operations had not terminated. The result is that the parties are not deprived of an appropriate forum for a decision on the merits of the case before us about which we deliberately refrain from making anyfind that the merits of the question raised by the application were dealt with in the body of the judgment allowing the second appeal and dismissing the plaintiffs suit which is under appeal before us. The Defendant-Respondents are only seeking to support the Judgment of dismissal of the suit on another ground which was available. It is true that there is a very short separate order of the High Court also on the application of the Defendant-Respondents in the High Court under Sections 4 and 5 of the Act stating that the application is dismissed for the reasons given in the body of the judgment in the case. We, however, think that the Defendant-Respondents were justified in not appealing separately from it as there could be no res judicata against them when the plaintiffs suit was dismissed by the High Court. It has been rightly contended, on behalf of the Defendant-Respondents, that, as they had secured their object, which was the dismissal of the suit, there was nothing left for them to appeal against.8. Upon the facts and circumstances mentioned above, we think that the preliminary objection of the Defendant-Respondents, in support of which they have filed a separate application in this Court also, uncles Sections 4 and 5 of the Act, has to be accepted for the reasons given above. But, we also think that there is some force in the objection on behalf of the Plaintiff-Appellant that, we allow the decree of the High Court to stand, the disposal of the claims on merits by the consolidation authority may be hampered.
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M/S. Gotan Lime Syndicate Vs. Commissioner Of Income-Tax, Delhi And Rajasthan | its character as a capital payment if the sum determined was capital in nature. But it is an important fact in this case that it is a case of an annual payment of royalty or dead-rent. No lumpsum payment was ever settled or paid. We have not been referred to any case in which payments of royalty under a mining lease have been treated as capital expenditure. In H. R. Rorke Ltd. v. Commr. of Inland Revenue, (1960) 39 Tax Cas 194 at p. 202, Cross, J., while dealing with a similar question observed as follows:"The case then proceeds to set out the leases in question, which were substantially in the same form. The first was an agreement made on 16th December, 1957, between a Mr. Parker, the lessor, and the Company. Clause 1 provided that the lessor, being the owner of the land in question (four acres and five perches of agricultural land in Yorkshire) should let the land to the lessee- that is, the Appellant Company - from 5th November, 1957, for one year, paying therefor a royalty of 1s. 3d. per tonne for all coal recovered from the demised land and accepted by the coal sales department of the National Coal Board, or the sum of ? 312 10s. whichever was the greater, such payment to be made by calendar monthly instalments. There is, of course, no doubt that those rents or royalty payments would be allowable as deductions on revenue account."11. He had no doubt in his mind that rent and royalty payments would be deductible as revenue expenditure. In (1960) 40 ITR 67 : (AIR 1960 SC 1034 ) the assessee had already been allowed payments of royalty as revenue expenditure and the only dispute was regarding lumpsum payment. In Ogdan v. Meaway Cinemas Ltd., (1934) 18 Tax Cas 691 an annual payment in respect of the goodwill of the business was held to be an admissible deduction on the ground that "this is a revenue payment for the use during a certain period of certain valuable things and rights". The reason why royalty has to be allowed as revenue expenditure must be the relation which the royalty has to the raw-material which is going to be excavated or extracted. The more you take the more royalty you pay, and the minimum payment or the dead-rent also has the same characteristic, i.e., it is an advance payment in respect of certain amount of raw material to be excavated. We find that it is on this ground that the case strongly relied on by the learned Attorney-General (1962) 44 ITR 689 : (AIR 1962 SC 680 ) is distinguishable because payments there had no relation whatsoever to the amount of conchshells taken. As observed by Hidayatullah, J., "in obtaining the lease, the respondent obtained a speculative right to fish for chanks which it hoped to obtain and which might be in large quantities or small, according to its luck. The respondent changed the nature of its business to fishing for chanks instead of buying them". Hidayatullah, J., then put the case in a nutshell as follows :"That amount was paid to obtain an enduring asset in the shape of an exclusive right to fish, and the payment was not related to the chanks, which it might or might not have brought to the surface in this speculative business."12. The case of (1960) 40 ITR 67 : (AIR 1960 SC 1034 ) is distinguishable because on the facts it was a lumpsum payment in instalments for acquiring capital asset of enduring benefit to his trade.13. It is not the law that in every case, if an enduring advantage is obtained the expenditure for securing it must be treated as capital expenditure, for as pointed out by Channell, J., in Alianza Co. Ltd. v. Bell, (1904) 2 KB 666 "in the ordinary case, the cost of the material worked up in manufactory is not a capital expenditure; it is a current expenditure, and does not become a capital expenditure merely because the material is provided by something like a forward contract, under which a person for the payment of lumpsum down secures a supply of the raw material for a period extending over several years". This illustration shows that it is not in every case that an expenditure in respect of an advantage an enduring nature is capital expenditure. The reason underlying the illustration is that the payments made to enter into a forward contract have relation to the raw material eventually to be obtained. Viscount Cave acknowledged that in certain cases an expenditure for obtaining an enduring advantage need not be capital expenditure for he inserted the words "in the absence of special circumstances leading to an opposite conclusion" within brackets.14. We are of the opinion that in the present case the royalty payment is not a direct payment for securing an enduring advantage; it has relation to the raw material to be obtained. Ordinarily, a mining lease provides for a capital sum payment; but the fact that there is no lumpsum payment here cannot by itself lead to the conclusion that yearly payments to be made under the mining lease have relation to the acquisition of the advantage. No material has been placed on the record to show that any part of the royalty must, in view of the circumstances of the case, be treated as premium and be referable to the acquisition of the mining lease.15. Therefore, on the facts of this case we must hold that the royalty payment, including the dead rent, have relation only to the lime deposits to be got. If it has no direct relation to the acquisition of the asset, then the principle relied on by the learned Attorney-General does not afford him any assistance. We, therefore, hold that the yearly payment of Rs. 96,000 should be treated as revenue expenditure and the answer to the question referred to the High Court must be in favour of the assessee.16 | 1[ds]14. We are of the opinion that in the present case the royalty payment is not a direct payment for securing an enduring advantage; it has relation to the raw material to be obtained. Ordinarily, a mining lease provides for a capital sum payment; but the fact that there is no lumpsum payment here cannot by itself lead to the conclusion that yearly payments to be made under the mining lease have relation to the acquisition of the advantage. No material has been placed on the record to show that any part of the royalty must, in view of the circumstances of the case, be treated as premium and be referable to the acquisition of the mining lease.15. Therefore, on the facts of this case we must hold that the royalty payment, including the dead rent, have relation only to the lime deposits to be got. If it has no direct relation to the acquisition of the asset, then the principle relied on by the learned Attorney-General does not afford him any assistance. We, therefore, hold that the yearly payment of Rs. 96,000 should be treated as revenue expenditure and the answer to the question referred to the High Court must be in favour of the assessee.We do not think there is any necessity to decide whether the assessee got a licence or a lease or profit a prendre. Under the arrangement, read with the Rajasthan Minor Mineral Concession Rules, 1955, the assessee was certainly entitled to go upon the land, win theand had some rights to build premises for the purpose of winning the lime. But it is also clear that the assessee could not carry away any other mineral which might be found in the mine, and further he was obliged to allow other lessees of other minerals to go on the land and win their minerals. Thus there is no doubt that the assessee did derive an advantage by having entered into this arrangement. We will assume for the sake of this case that this advantage was to last at least for a period of five years. The question then arises whether the circumstances of this case fall within the test laid down by Viscount Cave and relied on strongly by the learnedIn our opinion, the test does not apply fully to this case because there is no payment once for all; it is a yearly payment ofand royalty. It is true that if a capital sum is arrived at and payment is made every year by chalking out the capital amount in various installments, the payment does not lose its character as a capital payment if the sum determined was capital in nature. But it is an important fact in this case that it is a case of an annual payment of royalty orNo lumpsum payment was ever settled or paid. We have not been referred to any case in which payments of royalty under a mining lease have been treated as capital expenditure. | 1 | 3,910 | 538 | ### Instruction:
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its character as a capital payment if the sum determined was capital in nature. But it is an important fact in this case that it is a case of an annual payment of royalty or dead-rent. No lumpsum payment was ever settled or paid. We have not been referred to any case in which payments of royalty under a mining lease have been treated as capital expenditure. In H. R. Rorke Ltd. v. Commr. of Inland Revenue, (1960) 39 Tax Cas 194 at p. 202, Cross, J., while dealing with a similar question observed as follows:"The case then proceeds to set out the leases in question, which were substantially in the same form. The first was an agreement made on 16th December, 1957, between a Mr. Parker, the lessor, and the Company. Clause 1 provided that the lessor, being the owner of the land in question (four acres and five perches of agricultural land in Yorkshire) should let the land to the lessee- that is, the Appellant Company - from 5th November, 1957, for one year, paying therefor a royalty of 1s. 3d. per tonne for all coal recovered from the demised land and accepted by the coal sales department of the National Coal Board, or the sum of ? 312 10s. whichever was the greater, such payment to be made by calendar monthly instalments. There is, of course, no doubt that those rents or royalty payments would be allowable as deductions on revenue account."11. He had no doubt in his mind that rent and royalty payments would be deductible as revenue expenditure. In (1960) 40 ITR 67 : (AIR 1960 SC 1034 ) the assessee had already been allowed payments of royalty as revenue expenditure and the only dispute was regarding lumpsum payment. In Ogdan v. Meaway Cinemas Ltd., (1934) 18 Tax Cas 691 an annual payment in respect of the goodwill of the business was held to be an admissible deduction on the ground that "this is a revenue payment for the use during a certain period of certain valuable things and rights". The reason why royalty has to be allowed as revenue expenditure must be the relation which the royalty has to the raw-material which is going to be excavated or extracted. The more you take the more royalty you pay, and the minimum payment or the dead-rent also has the same characteristic, i.e., it is an advance payment in respect of certain amount of raw material to be excavated. We find that it is on this ground that the case strongly relied on by the learned Attorney-General (1962) 44 ITR 689 : (AIR 1962 SC 680 ) is distinguishable because payments there had no relation whatsoever to the amount of conchshells taken. As observed by Hidayatullah, J., "in obtaining the lease, the respondent obtained a speculative right to fish for chanks which it hoped to obtain and which might be in large quantities or small, according to its luck. The respondent changed the nature of its business to fishing for chanks instead of buying them". Hidayatullah, J., then put the case in a nutshell as follows :"That amount was paid to obtain an enduring asset in the shape of an exclusive right to fish, and the payment was not related to the chanks, which it might or might not have brought to the surface in this speculative business."12. The case of (1960) 40 ITR 67 : (AIR 1960 SC 1034 ) is distinguishable because on the facts it was a lumpsum payment in instalments for acquiring capital asset of enduring benefit to his trade.13. It is not the law that in every case, if an enduring advantage is obtained the expenditure for securing it must be treated as capital expenditure, for as pointed out by Channell, J., in Alianza Co. Ltd. v. Bell, (1904) 2 KB 666 "in the ordinary case, the cost of the material worked up in manufactory is not a capital expenditure; it is a current expenditure, and does not become a capital expenditure merely because the material is provided by something like a forward contract, under which a person for the payment of lumpsum down secures a supply of the raw material for a period extending over several years". This illustration shows that it is not in every case that an expenditure in respect of an advantage an enduring nature is capital expenditure. The reason underlying the illustration is that the payments made to enter into a forward contract have relation to the raw material eventually to be obtained. Viscount Cave acknowledged that in certain cases an expenditure for obtaining an enduring advantage need not be capital expenditure for he inserted the words "in the absence of special circumstances leading to an opposite conclusion" within brackets.14. We are of the opinion that in the present case the royalty payment is not a direct payment for securing an enduring advantage; it has relation to the raw material to be obtained. Ordinarily, a mining lease provides for a capital sum payment; but the fact that there is no lumpsum payment here cannot by itself lead to the conclusion that yearly payments to be made under the mining lease have relation to the acquisition of the advantage. No material has been placed on the record to show that any part of the royalty must, in view of the circumstances of the case, be treated as premium and be referable to the acquisition of the mining lease.15. Therefore, on the facts of this case we must hold that the royalty payment, including the dead rent, have relation only to the lime deposits to be got. If it has no direct relation to the acquisition of the asset, then the principle relied on by the learned Attorney-General does not afford him any assistance. We, therefore, hold that the yearly payment of Rs. 96,000 should be treated as revenue expenditure and the answer to the question referred to the High Court must be in favour of the assessee.16
### Response:
1
### Explanation:
14. We are of the opinion that in the present case the royalty payment is not a direct payment for securing an enduring advantage; it has relation to the raw material to be obtained. Ordinarily, a mining lease provides for a capital sum payment; but the fact that there is no lumpsum payment here cannot by itself lead to the conclusion that yearly payments to be made under the mining lease have relation to the acquisition of the advantage. No material has been placed on the record to show that any part of the royalty must, in view of the circumstances of the case, be treated as premium and be referable to the acquisition of the mining lease.15. Therefore, on the facts of this case we must hold that the royalty payment, including the dead rent, have relation only to the lime deposits to be got. If it has no direct relation to the acquisition of the asset, then the principle relied on by the learned Attorney-General does not afford him any assistance. We, therefore, hold that the yearly payment of Rs. 96,000 should be treated as revenue expenditure and the answer to the question referred to the High Court must be in favour of the assessee.We do not think there is any necessity to decide whether the assessee got a licence or a lease or profit a prendre. Under the arrangement, read with the Rajasthan Minor Mineral Concession Rules, 1955, the assessee was certainly entitled to go upon the land, win theand had some rights to build premises for the purpose of winning the lime. But it is also clear that the assessee could not carry away any other mineral which might be found in the mine, and further he was obliged to allow other lessees of other minerals to go on the land and win their minerals. Thus there is no doubt that the assessee did derive an advantage by having entered into this arrangement. We will assume for the sake of this case that this advantage was to last at least for a period of five years. The question then arises whether the circumstances of this case fall within the test laid down by Viscount Cave and relied on strongly by the learnedIn our opinion, the test does not apply fully to this case because there is no payment once for all; it is a yearly payment ofand royalty. It is true that if a capital sum is arrived at and payment is made every year by chalking out the capital amount in various installments, the payment does not lose its character as a capital payment if the sum determined was capital in nature. But it is an important fact in this case that it is a case of an annual payment of royalty orNo lumpsum payment was ever settled or paid. We have not been referred to any case in which payments of royalty under a mining lease have been treated as capital expenditure.
|
Lanco Anpara Power Ltd Vs. State Of Uttar Pradesh | v. The Central Government Industrial Tribunal, (1980) 4 SCC 443 this Court reminded that semantic luxuries are misplaced in the interpretation of bread and butter statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.29. We would also like to reproduce a passage from Workmen of American Express v. Management of American Express, (1985) 4 SCC 71 which provides complete answer to the argument of the appellants based on literal construction:"4. The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights legislation are not to be put in Procrustean beds or shrunk to Liliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the "colour", the "content" and the "context" of such statutes (we have borrowed the words from Lord Wilberforces opinion in Prenn v. Simmonds [(1971) 3 All ER 237] ). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations..."30. In equal measure is the message contained in Carew and Co. Ltd. v. Union of India, (1975) 2 SCC 791 :"21. The law is not "a brooding omnipotence in the sky" but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammar is a good guide to meaning but a bad master to dictate..."31. The sentiments were echoed in Bombay Anand Bhavan Restaurant v. Deputy Director, Employees State Insurance Corporation & Anr., 2009(4) S.C.T. 421 : (2009) 9 SCC 61 in the following words:"20. The Employees State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees State Insurance Act is a social security legislation and the canons of interpreting a social legislation are different from the canons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects."32. In taking the aforesaid view, we also agree with the learned counsel for the respondents that superior purpose contained in BOCW Act and Welfare Cess Act has to be kept in mind when two enactments - the Factories Act on the one hand and BOCW Act/Welfare Cess Act on the other hand, are involved, both of which are welfare legislations. (See Allahabad Bank v. Canara Bank, (2000) 4 SCC 406 which has been followed in Pegasus Assets Reconstruction P. Ltd. v. M/s. Haryana Concast Limited & Anr., 2016(3) Recent Apex Judgments (R.A.J.) 37 : 2016 (1) SCALE 1 in the context of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and Companies Act, 1956. Here the concept of felt necessity would get triggered and as per the Statement of Objects and Reasons contained in BOCW Act, since the purpose of this Act is to take care of a particular necessity i.e. welfare of unorganised labour class involved in construction activity, that needs to be achieved and not to be discarded. Here the doctrine of Purposive Interpretation also gets attracted which is explained in recent judgments of this Court in Richa Mishra v. State of Chhattisgarh and Others, 2016(1) S.C.T. 776 : (2016) 4 SCC 179 at Page No. 197 and Shailesh Dhairyawan v. Mohan Balkrishna Lulla, 2016(1) R.C.R.(Civil) 928 : 2016(1) Recent Apex Judgments (R.A.J.) 503 : (2016) 3 SCC 619 - Para 31.33. We are left to deal with the argument of the appellants that while granting permission under the Factories Act, various conditions are imposed which the appellants are required to fulfill and these conditions are almost the same which are contained in BOCW Act. We are not convinced with this submission either. It is already held that provisions of Factories Act are not applicable to these construction workers. Registration under the Factories Act becomes necessary in view of provisions contained in Section 6 of the said Act as this Section requires taking of approval and registration of factories even at preparatory stage i.e. at the stage when the premises where factory is to operate has to ensure that construction will be done in such a manner that it takes care of safety measures etc. which are provided in the Factories Act. This means to ensure that construction is carried out in such a manner that provisions in the Factories Act to ensure health, safety and provisions relating to hazardous process as well as welfare measures are taken care of. It is for this reason that even after the building is completed before it is occupied, notice under Section 7 is to be given by the occupier to the Chief Inspector of Factories so that a necessary inspection is carried out to verify that all such measures are in place. Therefore, when the permissions for construction of factories is given, the purpose is altogether different.34. It is stated at the cost of repetition that construction workers are not covered by the Factories Act and, therefore, welfare measures specifically provided for such workers under the BOCW Act and Welfare Cess Act cannot be denied. | 0[ds]21. On the conjoint reading of the aforesaid provisions, it becomes clear that "factory" is that establishment where manufacturing process is carried on with or without the aid of power. Carrying on this manufacturing process or manufacturing activity is thus a prerequisite. It is equally pertinent to note that it covers only those workers who are engaged in the said manufacturing process. Insofar as these appellants are concerned, construction of building is not their business activity or manufacturing process. In fact, the building is being constructed for carrying out the particular manufacturing process, which, in most of these appeals, is generation, transmission and distribution of power. Obviously, the workers who are engaged in construction of the building also do not fall within the definition of worker under the Factories Act. On these two aspects there is no cleavage and both parties are at ad idem. What follows is that these construction workers are not covered by the provisions of the Factories Act.22. Having regard to the above, if the contention of the appellants is accepted, the construction workers engaged in the construction of building undertaken by the appellants which is to be used ultimately as factory, would stand excluded from the provisions of BOCW Act and Welfare Cess Act as well. Could this be the intention while providing the definition of building and other construction work in Section 2(d) of BOCW Act? Clear answer to this has to be in the negative.23. We may mention at this stage that High Court is right in observing that merely because the appellants have obtained a licence under Section 6 of the Factories Act for registration to work a factory, it would not follow therefrom that they answer the description of the "factory" within the meaning of the Factories Act. We have reproduced the definition of factory and a bare reading thereof makes it abundantly clear that before this stage, when construction of the project is completed and the manufacturing process starts, factory within the meaning of Section 2(m) of the Factories Act does not come into existence so as to be covered by the said Act.24. We now advert to the core issue touching upon the construction of Section 2(d) of the BOCW Act. The argument of the appellants is that language thereof is unambiguous and literal construction is to be accorded to find the legislative intent. To our mind, this submission is of no avail. Section 2(d) of the BOCW Act dealing with the building or construction work is in three parts. In the first part, different activities are mentioned which are to be covered by the said expression, namely, construction, alterations, repairs, maintenance or demolition. Second part of the definition is aimed at those buildings or works in relation to which the aforesaid activities are carried out. The third part of the definition contains exclusion clause by stipulating that it does not include any building or other construction work to which the provisions of the Factories Act, 1948 (63 of 1948), or the Mines Act, 1952 (35 of 1952), applies. Thus, first part of the definition contains the nature of activity; second part contains the subject matter in relation to which the activity is carried out and third part excludes those building or other construction work to which the provisions of Factories Act or Mines Act apply.26. The aforesaid meaning attributed to the exclusion clause of the definition is also in consonance with the objective and purpose which is sought to be achieved by the enactment of BOCW Act and Welfare Cess Act. As pointed out above, if the construction of this provision as suggested by the appellants is accepted, the construction workers who are engaged in the construction of buildings/projects will neither get the benefit of the Factories Act nor of BOCW Act/Welfare Cess Act. That could not have been the intention of the Legislature. BOCW Act and Welfare Cess Act are pieces of social security legislation to provide for certain benefits to the construction workers.taking the aforesaid view, we also agree with the learned counsel for the respondents that superior purpose contained in BOCW Act and Welfare Cess Act has to be kept in mind when two enactments - the Factories Act on the one hand and BOCW Act/Welfare Cess Act on the other hand, are involved, both of which are welfare legislations. (See Allahabad Bank v. Canara Bank, (2000) 4 SCC 406 which has been followed in Pegasus Assets Reconstruction P. Ltd. v. M/s. Haryana Concast Limited & Anr., 2016(3) Recent Apex Judgments (R.A.J.) 37 : 2016 (1) SCALE 1 in the context of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and Companies Act, 1956. Here the concept of felt necessity would get triggered and as per the Statement of Objects and Reasons contained in BOCW Act, since the purpose of this Act is to take care of a particular necessity i.e. welfare of unorganised labour class involved in construction activity, that needs to be achieved and not to be discarded. Here the doctrine of Purposive Interpretation also gets attracted which is explained in recent judgments of this Court in Richa Mishra v. State of Chhattisgarh and Others, 2016(1) S.C.T. 776 : (2016) 4 SCC 179 at Page No. 197 and Shailesh Dhairyawan v. Mohan Balkrishna Lulla, 2016(1) R.C.R.(Civil) 928 : 2016(1) Recent Apex Judgments (R.A.J.) 503 : (2016) 3 SCC 619 - Para 31.is already held that provisions of Factories Act are not applicable to these construction workers. Registration under the Factories Act becomes necessary in view of provisions contained in Section 6 of the said Act as this Section requires taking of approval and registration of factories even at preparatory stage i.e. at the stage when the premises where factory is to operate has to ensure that construction will be done in such a manner that it takes care of safety measures etc. which are provided in the Factories Act. This means to ensure that construction is carried out in such a manner that provisions in the Factories Act to ensure health, safety and provisions relating to hazardous process as well as welfare measures are taken care of. It is for this reason that even after the building is completed before it is occupied, notice under Section 7 is to be given by the occupier to the Chief Inspector of Factories so that a necessary inspection is carried out to verify that all such measures are in place. Therefore, when the permissions for construction of factories is given, the purpose is altogether different.34. It is stated at the cost of repetition that construction workers are not covered by the Factories Act and, therefore, welfare measures specifically provided for such workers under the BOCW Act and Welfare Cess Act cannot be denied. | 0 | 9,528 | 1,274 | ### 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:
v. The Central Government Industrial Tribunal, (1980) 4 SCC 443 this Court reminded that semantic luxuries are misplaced in the interpretation of bread and butter statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.29. We would also like to reproduce a passage from Workmen of American Express v. Management of American Express, (1985) 4 SCC 71 which provides complete answer to the argument of the appellants based on literal construction:"4. The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights legislation are not to be put in Procrustean beds or shrunk to Liliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the "colour", the "content" and the "context" of such statutes (we have borrowed the words from Lord Wilberforces opinion in Prenn v. Simmonds [(1971) 3 All ER 237] ). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations..."30. In equal measure is the message contained in Carew and Co. Ltd. v. Union of India, (1975) 2 SCC 791 :"21. The law is not "a brooding omnipotence in the sky" but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammar is a good guide to meaning but a bad master to dictate..."31. The sentiments were echoed in Bombay Anand Bhavan Restaurant v. Deputy Director, Employees State Insurance Corporation & Anr., 2009(4) S.C.T. 421 : (2009) 9 SCC 61 in the following words:"20. The Employees State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees State Insurance Act is a social security legislation and the canons of interpreting a social legislation are different from the canons of interpretation of taxation law. The courts must not countenance any subterfuge which would defeat the provisions of social legislation and the courts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal construction so as to promote its objects."32. In taking the aforesaid view, we also agree with the learned counsel for the respondents that superior purpose contained in BOCW Act and Welfare Cess Act has to be kept in mind when two enactments - the Factories Act on the one hand and BOCW Act/Welfare Cess Act on the other hand, are involved, both of which are welfare legislations. (See Allahabad Bank v. Canara Bank, (2000) 4 SCC 406 which has been followed in Pegasus Assets Reconstruction P. Ltd. v. M/s. Haryana Concast Limited & Anr., 2016(3) Recent Apex Judgments (R.A.J.) 37 : 2016 (1) SCALE 1 in the context of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and Companies Act, 1956. Here the concept of felt necessity would get triggered and as per the Statement of Objects and Reasons contained in BOCW Act, since the purpose of this Act is to take care of a particular necessity i.e. welfare of unorganised labour class involved in construction activity, that needs to be achieved and not to be discarded. Here the doctrine of Purposive Interpretation also gets attracted which is explained in recent judgments of this Court in Richa Mishra v. State of Chhattisgarh and Others, 2016(1) S.C.T. 776 : (2016) 4 SCC 179 at Page No. 197 and Shailesh Dhairyawan v. Mohan Balkrishna Lulla, 2016(1) R.C.R.(Civil) 928 : 2016(1) Recent Apex Judgments (R.A.J.) 503 : (2016) 3 SCC 619 - Para 31.33. We are left to deal with the argument of the appellants that while granting permission under the Factories Act, various conditions are imposed which the appellants are required to fulfill and these conditions are almost the same which are contained in BOCW Act. We are not convinced with this submission either. It is already held that provisions of Factories Act are not applicable to these construction workers. Registration under the Factories Act becomes necessary in view of provisions contained in Section 6 of the said Act as this Section requires taking of approval and registration of factories even at preparatory stage i.e. at the stage when the premises where factory is to operate has to ensure that construction will be done in such a manner that it takes care of safety measures etc. which are provided in the Factories Act. This means to ensure that construction is carried out in such a manner that provisions in the Factories Act to ensure health, safety and provisions relating to hazardous process as well as welfare measures are taken care of. It is for this reason that even after the building is completed before it is occupied, notice under Section 7 is to be given by the occupier to the Chief Inspector of Factories so that a necessary inspection is carried out to verify that all such measures are in place. Therefore, when the permissions for construction of factories is given, the purpose is altogether different.34. It is stated at the cost of repetition that construction workers are not covered by the Factories Act and, therefore, welfare measures specifically provided for such workers under the BOCW Act and Welfare Cess Act cannot be denied.
### Response:
0
### Explanation:
follows is that these construction workers are not covered by the provisions of the Factories Act.22. Having regard to the above, if the contention of the appellants is accepted, the construction workers engaged in the construction of building undertaken by the appellants which is to be used ultimately as factory, would stand excluded from the provisions of BOCW Act and Welfare Cess Act as well. Could this be the intention while providing the definition of building and other construction work in Section 2(d) of BOCW Act? Clear answer to this has to be in the negative.23. We may mention at this stage that High Court is right in observing that merely because the appellants have obtained a licence under Section 6 of the Factories Act for registration to work a factory, it would not follow therefrom that they answer the description of the "factory" within the meaning of the Factories Act. We have reproduced the definition of factory and a bare reading thereof makes it abundantly clear that before this stage, when construction of the project is completed and the manufacturing process starts, factory within the meaning of Section 2(m) of the Factories Act does not come into existence so as to be covered by the said Act.24. We now advert to the core issue touching upon the construction of Section 2(d) of the BOCW Act. The argument of the appellants is that language thereof is unambiguous and literal construction is to be accorded to find the legislative intent. To our mind, this submission is of no avail. Section 2(d) of the BOCW Act dealing with the building or construction work is in three parts. In the first part, different activities are mentioned which are to be covered by the said expression, namely, construction, alterations, repairs, maintenance or demolition. Second part of the definition is aimed at those buildings or works in relation to which the aforesaid activities are carried out. The third part of the definition contains exclusion clause by stipulating that it does not include any building or other construction work to which the provisions of the Factories Act, 1948 (63 of 1948), or the Mines Act, 1952 (35 of 1952), applies. Thus, first part of the definition contains the nature of activity; second part contains the subject matter in relation to which the activity is carried out and third part excludes those building or other construction work to which the provisions of Factories Act or Mines Act apply.26. The aforesaid meaning attributed to the exclusion clause of the definition is also in consonance with the objective and purpose which is sought to be achieved by the enactment of BOCW Act and Welfare Cess Act. As pointed out above, if the construction of this provision as suggested by the appellants is accepted, the construction workers who are engaged in the construction of buildings/projects will neither get the benefit of the Factories Act nor of BOCW Act/Welfare Cess Act. That could not have been the intention of the Legislature. BOCW Act and Welfare Cess Act are pieces of social security legislation to provide for certain benefits to the construction workers.taking the aforesaid view, we also agree with the learned counsel for the respondents that superior purpose contained in BOCW Act and Welfare Cess Act has to be kept in mind when two enactments - the Factories Act on the one hand and BOCW Act/Welfare Cess Act on the other hand, are involved, both of which are welfare legislations. (See Allahabad Bank v. Canara Bank, (2000) 4 SCC 406 which has been followed in Pegasus Assets Reconstruction P. Ltd. v. M/s. Haryana Concast Limited & Anr., 2016(3) Recent Apex Judgments (R.A.J.) 37 : 2016 (1) SCALE 1 in the context of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and Companies Act, 1956. Here the concept of felt necessity would get triggered and as per the Statement of Objects and Reasons contained in BOCW Act, since the purpose of this Act is to take care of a particular necessity i.e. welfare of unorganised labour class involved in construction activity, that needs to be achieved and not to be discarded. Here the doctrine of Purposive Interpretation also gets attracted which is explained in recent judgments of this Court in Richa Mishra v. State of Chhattisgarh and Others, 2016(1) S.C.T. 776 : (2016) 4 SCC 179 at Page No. 197 and Shailesh Dhairyawan v. Mohan Balkrishna Lulla, 2016(1) R.C.R.(Civil) 928 : 2016(1) Recent Apex Judgments (R.A.J.) 503 : (2016) 3 SCC 619 - Para 31.is already held that provisions of Factories Act are not applicable to these construction workers. Registration under the Factories Act becomes necessary in view of provisions contained in Section 6 of the said Act as this Section requires taking of approval and registration of factories even at preparatory stage i.e. at the stage when the premises where factory is to operate has to ensure that construction will be done in such a manner that it takes care of safety measures etc. which are provided in the Factories Act. This means to ensure that construction is carried out in such a manner that provisions in the Factories Act to ensure health, safety and provisions relating to hazardous process as well as welfare measures are taken care of. It is for this reason that even after the building is completed before it is occupied, notice under Section 7 is to be given by the occupier to the Chief Inspector of Factories so that a necessary inspection is carried out to verify that all such measures are in place. Therefore, when the permissions for construction of factories is given, the purpose is altogether different.34. It is stated at the cost of repetition that construction workers are not covered by the Factories Act and, therefore, welfare measures specifically provided for such workers under the BOCW Act and Welfare Cess Act cannot be denied.
|
M/s. Sable Waghire & Company & Others Vs. Union of India & Others | of that name. A similar recommendation has since been received also from the World Health Organisation for prevention of the use of its name (and abbreviations), emblem and official seal. Instances have also come to light of the use in India (and abroad) of the Indian National Flag and emblem and of the names or pictorial representations of Mahatma Gandhi and other national leaders, for commercial and trade purposes and in a manner likely to offend the sentiments of the people. The provisions of the Indian Trade Marks Act, 1940, Indian Patents and Designs Act- 1911, Indian Merchandise Marks Act, 1889, and the Indian Companies Act, 1913, are not adequate to prevent these abuses. The Bill seeks to prevent the improper use of these names, emblems, etc., for the purpose of trade, business, calling, profession patent or design, and to impose a penalty for misuse of emblems, etc., specified in the schedule and empowers the Central Government to make additions and amendments in the schedule as and when necessary. 16. What is in a name may not always be innocent. Logically proper names are not connotative but have often gathered a content, a halo, around them sometimes or for all times to come. National or international significance gets attached to certain names or institutions over the years or ages and then they belong to the nation or to all nations. Human sentiments and often a deep sense of religiosity pervade through and provide a sacred mantle as it were to the nomenclature. In order to arouse national sentiments every where invocation of "Chhatrapati shivaji" in manifold ways in the era of struggle for independence of our country is now, by turn of history repealed by an ardent worship of the proud heritage by a grateful nation. I am reflecting the national consciousness, therefore, forbids ordinary commercial use of the sacred name by individuals in their own interest as opposed to national interest. 17. We take it that the scheme disclosed in the provisions of the Act read with the preamble, and the Objects and Reasons make it clear that there was imperative necessity for regulating the use of certain emblems and names. The fact that only improper use of the names and emblems is prohibited itself provides guidance. The original entries in the Schedule would also point to the nature and character of the names, emblems and entities. It is not possible for the Parliament to envisage the possibility of improper use of all names and emblems as time goes on. Nor is it possible to enumerate in the Schedule an exhaustive list of all the names, emblems and entities. Section 8. therefore, makes provision for empowering the Central Government to add to or alter the Schedule. In the nature of things, there is no abdication of legislative function by Parliament in delegating its power under Section 8 in favour of the Central Government which will be the appropriate authority to consider from time to time as to the items to be included in or omitted from the Schedule in the light of knowledge and experience gathered from the nook and corner of the entire country. There is, therefore, no excessive delegation of legislative power by Parliament in favour of the Central Government. From the Objects and Reasons, the preamble and the provisions of the Act with the built-in limitations in Section 3 taken with the schedule, a policy is clearly discernible and there is sufficient guidance therein to enable the Central Government to exercise its power under the Act. The relevant matters mentioned above are sufficiently informative of the policy of the law to rob the efficacy of an argument on the score of scantiness in the Act. The impugned Notification dated March 16,1968 of the Central Government under Section 8 cannot, therefore, be invalid. The objection on the score of Article 14 is of no avail. 18. There is also no merit in the contention that Sections 3 and 4 violate the provisions of Article 19 (1) (f) and (g) of the Constitution. The petitioners right to trade in bidis is not at all interfered with by the legislation, Section 3 in terms provides for enabling the affected persons to adjust their business or affairs inasmuch as the Central Government can permit some time to alter their emblems, designs, etc. to carry on with their trade, Indeed in the present case the petitioners on their own application obtained an extension of time presumably under Section 3 of the Act and, therefore, cannot complain on that score. There is built-in safe guard in Section 3 itself for mitigating any hardship to persons or any rigour of the law. The provisions are accordingly regulatory in nature and even if at all, impose only reasonable restrictions on the exercise of the petitioners right under Article 19 (1) (f) and (g). Section 4 is a consequential provision and validly co-exists with Section 3. 19. It is also contended by the petitioners that no rules have been framed under Section 9 of the Act which make the same unworkable. We are not impressed by this argument. From the scheme and machinery of the Act there is nothing to indicate that absence of rules will make the Act unworkable. The submission is devoid of substance. 20. Lastly it was submitted that the Notification under Section 8 was not published in the name of the President and was issued by the. Under Secretary who was not authorised to do so. The Notification is not an executive order but is a piece of subordinate legislation made by the Central Government under Section 8 of the Act. It was duly published in the Gazette of India over the signature of the Under Secretary who was authorised for the purpose. The question of violation of Article 77 does not arise. 21. Since the Act and the impugned provisions are constitutionally valid, objection to the Notice of the Joint Registrar dated October 16, 1969. is also of no avail. | 0[ds]12. In considering the question of competency of legislation and, for the matter of that, in interpreting the entries in the Lists of the Seventh Schedule a broad and liberal approach has been a well-settled rule of the Court. The subject matter of the legislation is also to be gathered from the totality of the provisions of the Act read with the preamble and the Schedule. So read it is clear that the Act does not concern itself directly or even substantially with trade or commerce13. Entry 49 of List I may well supply the coverage for the Union legislative field so far as the Act is concerned. Trade marks, designs and merchandise marks may legitimately take in matters relating to their abuses and improper uses. Even otherwise the residuary entry 97 of List is of wide amplitude to take care of the particular subject matter of legislation, namely prevention of improper use of certain emblems and names for professional and/or commercial purposes. The objection on the score of legislative incompetency of Parliament is, therefore, devoid of merit17. We take it that the scheme disclosed in the provisions of the Act read with the preamble, and the Objects and Reasons make it clear that there was imperative necessity for regulating the use of certain emblems and names. The fact that only improper use of the names and emblems is prohibited itself provides guidance. The original entries in the Schedule would also point to the nature and character of the names, emblems and entities. It is not possible for the Parliament to envisage the possibility of improper use of all names and emblems as time goes on. Nor is it possible to enumerate in the Schedule an exhaustive list of all the names, emblems and entities. Section 8. therefore, makes provision for empowering the Central Government to add to or alter the Schedule. In the nature of things, there is no abdication of legislative function by Parliament in delegating its power under Section 8 in favour of the Central Government which will be the appropriate authority to consider from time to time as to the items to be included in or omitted from the Schedule in the light of knowledge and experience gathered from the nook and corner of the entire country. There is, therefore, no excessive delegation of legislative power by Parliament in favour of the Central Government. From the Objects and Reasons, the preamble and the provisions of the Act with the built-in limitations in Section 3 taken with the schedule, a policy is clearly discernible and there is sufficient guidance therein to enable the Central Government to exercise its power under the Act. The relevant matters mentioned above are sufficiently informative of the policy of the law to rob the efficacy of an argument on the score of scantiness in the Act. The impugned Notification dated March 16,1968 of the Central Government under Section 8 cannot, therefore, be invalid. The objection on the score of Article 14 is of no avail18. There is also no merit in the contention that Sections 3 and 4 violate the provisions of Article 19 (1) (f) and (g) of the Constitution. The petitioners right to trade in bidis is not at all interfered with by the legislation, Section 3 in terms provides for enabling the affected persons to adjust their business or affairs inasmuch as the Central Government can permit some time to alter their emblems, designs, etc. to carry on with their trade, Indeed in the present case the petitioners on their own application obtained an extension of time presumably under Section 3 of the Act and, therefore, cannot complain on that score. There is built-in safe guard in Section 3 itself for mitigating any hardship to persons or any rigour of the law. The provisions are accordingly regulatory in nature and even if at all, impose only reasonable restrictions on the exercise of the petitioners right under Article 19 (1) (f) and (g). Section 4 is a consequential provision and validly co-exists with Section 3We are not impressed by this argument. From the scheme and machinery of the Act there is nothing to indicate that absence of rules will make the Act unworkable. The submission is devoid of substanceThe Notification is not an executive order but is a piece of subordinate legislation made by the Central Government under Section 8 of the Act. It was duly published in the Gazette of India over the signature of the Under Secretary who was authorised for the purpose. The question of violation of Article 77 does not arise21. Since the Act and the impugned provisions are constitutionally valid, objection to the Notice of the Joint Registrar dated October 16, 1969. is also of no avail. | 0 | 3,276 | 867 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
of that name. A similar recommendation has since been received also from the World Health Organisation for prevention of the use of its name (and abbreviations), emblem and official seal. Instances have also come to light of the use in India (and abroad) of the Indian National Flag and emblem and of the names or pictorial representations of Mahatma Gandhi and other national leaders, for commercial and trade purposes and in a manner likely to offend the sentiments of the people. The provisions of the Indian Trade Marks Act, 1940, Indian Patents and Designs Act- 1911, Indian Merchandise Marks Act, 1889, and the Indian Companies Act, 1913, are not adequate to prevent these abuses. The Bill seeks to prevent the improper use of these names, emblems, etc., for the purpose of trade, business, calling, profession patent or design, and to impose a penalty for misuse of emblems, etc., specified in the schedule and empowers the Central Government to make additions and amendments in the schedule as and when necessary. 16. What is in a name may not always be innocent. Logically proper names are not connotative but have often gathered a content, a halo, around them sometimes or for all times to come. National or international significance gets attached to certain names or institutions over the years or ages and then they belong to the nation or to all nations. Human sentiments and often a deep sense of religiosity pervade through and provide a sacred mantle as it were to the nomenclature. In order to arouse national sentiments every where invocation of "Chhatrapati shivaji" in manifold ways in the era of struggle for independence of our country is now, by turn of history repealed by an ardent worship of the proud heritage by a grateful nation. I am reflecting the national consciousness, therefore, forbids ordinary commercial use of the sacred name by individuals in their own interest as opposed to national interest. 17. We take it that the scheme disclosed in the provisions of the Act read with the preamble, and the Objects and Reasons make it clear that there was imperative necessity for regulating the use of certain emblems and names. The fact that only improper use of the names and emblems is prohibited itself provides guidance. The original entries in the Schedule would also point to the nature and character of the names, emblems and entities. It is not possible for the Parliament to envisage the possibility of improper use of all names and emblems as time goes on. Nor is it possible to enumerate in the Schedule an exhaustive list of all the names, emblems and entities. Section 8. therefore, makes provision for empowering the Central Government to add to or alter the Schedule. In the nature of things, there is no abdication of legislative function by Parliament in delegating its power under Section 8 in favour of the Central Government which will be the appropriate authority to consider from time to time as to the items to be included in or omitted from the Schedule in the light of knowledge and experience gathered from the nook and corner of the entire country. There is, therefore, no excessive delegation of legislative power by Parliament in favour of the Central Government. From the Objects and Reasons, the preamble and the provisions of the Act with the built-in limitations in Section 3 taken with the schedule, a policy is clearly discernible and there is sufficient guidance therein to enable the Central Government to exercise its power under the Act. The relevant matters mentioned above are sufficiently informative of the policy of the law to rob the efficacy of an argument on the score of scantiness in the Act. The impugned Notification dated March 16,1968 of the Central Government under Section 8 cannot, therefore, be invalid. The objection on the score of Article 14 is of no avail. 18. There is also no merit in the contention that Sections 3 and 4 violate the provisions of Article 19 (1) (f) and (g) of the Constitution. The petitioners right to trade in bidis is not at all interfered with by the legislation, Section 3 in terms provides for enabling the affected persons to adjust their business or affairs inasmuch as the Central Government can permit some time to alter their emblems, designs, etc. to carry on with their trade, Indeed in the present case the petitioners on their own application obtained an extension of time presumably under Section 3 of the Act and, therefore, cannot complain on that score. There is built-in safe guard in Section 3 itself for mitigating any hardship to persons or any rigour of the law. The provisions are accordingly regulatory in nature and even if at all, impose only reasonable restrictions on the exercise of the petitioners right under Article 19 (1) (f) and (g). Section 4 is a consequential provision and validly co-exists with Section 3. 19. It is also contended by the petitioners that no rules have been framed under Section 9 of the Act which make the same unworkable. We are not impressed by this argument. From the scheme and machinery of the Act there is nothing to indicate that absence of rules will make the Act unworkable. The submission is devoid of substance. 20. Lastly it was submitted that the Notification under Section 8 was not published in the name of the President and was issued by the. Under Secretary who was not authorised to do so. The Notification is not an executive order but is a piece of subordinate legislation made by the Central Government under Section 8 of the Act. It was duly published in the Gazette of India over the signature of the Under Secretary who was authorised for the purpose. The question of violation of Article 77 does not arise. 21. Since the Act and the impugned provisions are constitutionally valid, objection to the Notice of the Joint Registrar dated October 16, 1969. is also of no avail.
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12. In considering the question of competency of legislation and, for the matter of that, in interpreting the entries in the Lists of the Seventh Schedule a broad and liberal approach has been a well-settled rule of the Court. The subject matter of the legislation is also to be gathered from the totality of the provisions of the Act read with the preamble and the Schedule. So read it is clear that the Act does not concern itself directly or even substantially with trade or commerce13. Entry 49 of List I may well supply the coverage for the Union legislative field so far as the Act is concerned. Trade marks, designs and merchandise marks may legitimately take in matters relating to their abuses and improper uses. Even otherwise the residuary entry 97 of List is of wide amplitude to take care of the particular subject matter of legislation, namely prevention of improper use of certain emblems and names for professional and/or commercial purposes. The objection on the score of legislative incompetency of Parliament is, therefore, devoid of merit17. We take it that the scheme disclosed in the provisions of the Act read with the preamble, and the Objects and Reasons make it clear that there was imperative necessity for regulating the use of certain emblems and names. The fact that only improper use of the names and emblems is prohibited itself provides guidance. The original entries in the Schedule would also point to the nature and character of the names, emblems and entities. It is not possible for the Parliament to envisage the possibility of improper use of all names and emblems as time goes on. Nor is it possible to enumerate in the Schedule an exhaustive list of all the names, emblems and entities. Section 8. therefore, makes provision for empowering the Central Government to add to or alter the Schedule. In the nature of things, there is no abdication of legislative function by Parliament in delegating its power under Section 8 in favour of the Central Government which will be the appropriate authority to consider from time to time as to the items to be included in or omitted from the Schedule in the light of knowledge and experience gathered from the nook and corner of the entire country. There is, therefore, no excessive delegation of legislative power by Parliament in favour of the Central Government. From the Objects and Reasons, the preamble and the provisions of the Act with the built-in limitations in Section 3 taken with the schedule, a policy is clearly discernible and there is sufficient guidance therein to enable the Central Government to exercise its power under the Act. The relevant matters mentioned above are sufficiently informative of the policy of the law to rob the efficacy of an argument on the score of scantiness in the Act. The impugned Notification dated March 16,1968 of the Central Government under Section 8 cannot, therefore, be invalid. The objection on the score of Article 14 is of no avail18. There is also no merit in the contention that Sections 3 and 4 violate the provisions of Article 19 (1) (f) and (g) of the Constitution. The petitioners right to trade in bidis is not at all interfered with by the legislation, Section 3 in terms provides for enabling the affected persons to adjust their business or affairs inasmuch as the Central Government can permit some time to alter their emblems, designs, etc. to carry on with their trade, Indeed in the present case the petitioners on their own application obtained an extension of time presumably under Section 3 of the Act and, therefore, cannot complain on that score. There is built-in safe guard in Section 3 itself for mitigating any hardship to persons or any rigour of the law. The provisions are accordingly regulatory in nature and even if at all, impose only reasonable restrictions on the exercise of the petitioners right under Article 19 (1) (f) and (g). Section 4 is a consequential provision and validly co-exists with Section 3We are not impressed by this argument. From the scheme and machinery of the Act there is nothing to indicate that absence of rules will make the Act unworkable. The submission is devoid of substanceThe Notification is not an executive order but is a piece of subordinate legislation made by the Central Government under Section 8 of the Act. It was duly published in the Gazette of India over the signature of the Under Secretary who was authorised for the purpose. The question of violation of Article 77 does not arise21. Since the Act and the impugned provisions are constitutionally valid, objection to the Notice of the Joint Registrar dated October 16, 1969. is also of no avail.
|
Murthy Match Works, Etc. Etc Vs. The Asstt. Collector Of Central Excise, Etc | has not made the classification which commends to the Court as proper. Nor can the legislative power be said to have been unconstitutionally exercised because within the class a sub-classification was reasonable but has not been made.19. It is well established that the modern State, in exercising its sovereign power of taxation, has to deal with complex factors relating to the objects to the taxed, the quantum to be levied, the conditions subject to which the levy has to be made, the social and economic policies which the tax is designed to subserve, and what not. In the famous words of Holmes, J. in Bain Peanut Co. v. Pinson, (1930) 282 US 499; 501:"We must remember that the machinery of Government would not work if it were not allowed a little play in its joints."20. In the present case, a pertinent principle of differentiation, which is visibly linked to productive process, has been adopted in the broad classification of power users and manual manufacturers. It is irrational to castigate this basis as unreal. Indeed, the soundness of this distinction is not denied. The challenge is founded on the failure to mini-classify between large and small sections of manual match manufacturers. But ours is not to reason why, that being a policy decision of Government dependent on pragmatic wisdom playing on imponderable forces at work. Our jurisdiction halts where the constitution touchstone of a rational differntia having a just relation to the legislative end to revenue raising is satisfied. Gratuitous judicial advice on the socialistic direction of fiscal policy is de trop. We desist from that enterprise and leave the petitioners and men of his ilk to seek other democratic remedies in that behalf, it being beyond our area normally to demolish the tax structure because micro-classification among a large group has not been done by the State. Absolute justice to every producer is a self-defeating adventure for any administration and general direction, not minute classification, is all that can be attempted. For these reasons we find ourselves in agreement with the High Court in its refusal to strike down the notification under S. 3 of the Central Excises and Salt Act, 1944.21. Before concluding we may make a passing reference to the few decision cited by appellants counsel. In K. T. Moopi Nair v. State of Kerala, (1961) 3 SCR 77 = (AIR 1961 SC 552 ) Sinha, C.J., emphasized that Art. 14 may be violated even though the law may, on the face, be equal if in substance unequal things are treated equally. In State of Kerala v. Haji K. Haji Kutty Naha, Civil Appeals Nos. 1052 etc. of 1968 judgment D/- 13-8-1968 = (reported in AIR 1969 SC 378 ), Shah J., observed:"Where objects, persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, in our view, refusal to make a rational classification may itself in some cases operate as denial of equality."A similar view has been taken in Khandige Sham Bhat v. The Agricultural Income-tax Officer, (1963) 3 SCR 809 , 817 = (AIR 1963 SC 591 ).22. It is sound law that refusal to make rational classification where grossly dissimilar subjects are treated by the law violates the mandate of Art. 14. Even so, where the limited classification adopted in the present case is based upon a relevant differentia which has a nexus to the legislative end of taxation, the Court cannot strike down the law on the score that there is room for further classification. Refusal to classify is one thing and it bears on constitutionality, not launching on micro-classification to work out perfect justice is left to executive expediency and legislative judgment and not for forensic wisdom."The relationship between the legislative and judicial departments of Government in the determination of the validity of classification is well-settled .... the authorities state with unanimity that the question of classification is primarily for the legislature and that it can never become a judicial question except for the purpose of determining, in any given situation whether the legislative action is clearly unreasonable. The legislative classification is subject to judicial revision only to the extent of seeing that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones used for the purposes of evading the constitutional prohibition.(American Jurisprudence 2d : Vol. 16 para 496)."In a classification for Governmental purposes there cannot be an exact exclusion or inclusion of persons and things. The constitutional command for a state to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars, and differ from other things in those particulars. It is almost impossible in some matters to foresee and provide for every imaginable and exceptional case, and a legislature ought not to be required to do so at the risk of having its legislation declared void, although appropriate and proper upon the general subject upon which such legislation is to act, so long as there is no substantial and fair ground to say that the statute makes an unreasonable and unfounded general classification, and thereby denies to any person the equal protection of the laws. Hence, a large latitude is allowed to the States for classification upon any reasonable basis, and what is reasonable is a question of practical details into which fiction cannot enter." (ibid; para 504).23. We have said enough to delineate the finer frontiers of the jurisdiction of the Court and the legislature. Having sensitive regard to the obligation of the State to bring the law, including the tax law, into pulsing relationship with life, including the life of the countrys economy, we see nothing so grossly unfair as to attract the lethal power of the Court to strike down the notification under challenge. | 0[ds]9. There is no doubt that in the past among themanufacturers of matches a further classification based on viability had been made. It is also true that the financial resources; the capacity to command a market on their own without depending on intermediaries, etc, marked off the B category from the C category. But then experience gathered subsequently disclosed certain evils which the state took note of and endeavored to set right. Ultimately, the present notifications was issued obliterating the distinction which gave a concessional edge to the C group over the Bbe, there is force in this grievance. Instead of protecting the tiny manufacturer from the injurious intermediary and inhibiting the larger producer from resorting to the device ofeve tactics, the State has resorted to a policy of equal levy from both which, according to the counsel hits the poor and helps theThis is criticism of legislative judgment, not a ground of judicial review.11. We agree that bare equality of treatment regardless of the inequality of realities is neither justice nor homage to the constitutional principle.The forensic focus turns on unconstitutionalof the "B" and "C" categories and the vice of lugging allproducers together into one mass. The Court is being invited to compel the legislative and executive wings to classify, but we feel that from the judicial inspection tower the Court may only search for arbitrary and irrational classification and its obverse, namely, capricious uniformity of treatment where a crying dismissilarity exists in reality.13. Right at the threshold we must warn ourselves of the limitations of judicial power in thisIn short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review. In the present case unconstitutionality is alleged as springing from lugging together two dissimilar categories of match manufacturers into one compartment for likeCertain principles which bear upon classification may be mentioned here. It is true that a State may classify persons and objects for the purpose of legislation and pass laws for the purpose of obtaining revenue or other objects. Every differentiation is not a discrimination. But classification can be sustained only if it is founded on pertinent and real difference as distinguished from irrelevant and artificial ones. The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured, has been repeatedly stated by the courts. If it rests of a difference which bears a fair and just relation to the object for which it is proposed, it is constitutional. To put it differently, the means must have nexus with the ends. Even so, a large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the Court will be reluctant and perhapsto investigate. In this imperfect world perfection even in grouping is an ambition hardly ever accomplished. In this context, we have to remember the relationship between the legislative and judicial departments of Government in the determination of the validity of classification. Of course, in the last analysis courts possess the power to pronounce on the constitutionality of the acts of the other branches whether a classification is based upon substantial differences or is arbitrary, fanciful and consequently illegal. At the same time, the question of classification is primarily for legislative judgment and ordinarily does not become a judicial question. A power to classify being extremely broad and based on deverse considerations of executive pragmatism, the judicature cannot rush in where even the legislature warily treads. All these operational restrints on judicial power must weigh more emphatically where the subject is taxation.16. One facet of the equal protection clause, upheld by the Indian Courts and relevant to the present case, is that while similar things must be treated similarly, dismilar things should not be treated similarly. There can be hostile discrimination while maintaining a facade of equality.Another proposition which is equally settled is that merely because there is room for classification it does not follow that legislation without classification is always unconstitutional. The Court cannot strike down a law because it has not made the classification which commends to the Court as proper. Nor can the legislative power be said to have been unconstitutionally exercised because within the class awas reasonable but has not been made.19. It is well established that the modern State, in exercising its sovereign power of taxation, has to deal with complex factors relating to the objects to the taxed, the quantum to be levied, the conditions subject to which the levy has to be made, the social and economic policies which the tax is designed to subserve, and what not. In the famous words of Holmes, J. in BainPeanut Co. v. Pinson, (1930) 282 USe must remember that the machinery of Government would not work if it were not allowed a little play in its joints.In the present case, a pertinent principle of differentiation, which is visibly linked to productive process, has been adopted in the broad classification of power users and manual manufacturers. It is irrational to castigate this basis as unreal. Indeed, the soundness of this distinction is not denied. The challenge is founded on the failure tobetween large and small sections of manual match manufacturers. But ours is not to reason why, that being a policy decision of Government dependent on pragmatic wisdom playing on imponderable forces at work. Our jurisdiction halts where the constitution touchstone of a rational differntia having a just relation to the legislative end to revenue raising is satisfied. Gratuitous judicial advice on the socialistic direction of fiscal policy is de trop. We desist from that enterprise and leave the petitioners and men of his ilk to seek other democratic remedies in that behalf, it being beyond our area normally to demolish the tax structure becauseamong a large group has not been done by the State. Absolute justice to every producer is aadventure for any administration and general direction, not minute classification, is all that can be attempted. For these reasons we find ourselves in agreement with the High Court in its refusal to strike down the notification under S. 3 ofthe Central Excises and Salt Act, 1944.21. Before concluding we may make a passing reference to the few decision cited by appellants counsel. In K. T. Moopi Nair v. State of Kerala, (1961) 3 SCR 77 = (AIR 1961 SC 552 ) Sinha, C.J., emphasized that Art. 14 may be violated even though the law may, on the face, be equal if in substance unequal things are treated equally. In State of Kerala v. Haji K. Haji Kutty Naha, Civil Appeals Nos. 1052 etc. of 1968 judgment D/= (reported in AIR 1969 SC 378 ), Shah J.,objects, persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, in our view, refusal to make a rational classification may itself in some cases operate as denial ofsimilar view has been taken in Khandige Sham Bhat v. The AgriculturalOfficer, (1963) 3 SCR 809 , 817 = (AIR 1963 SC 591 ).22. It is sound law that refusal to make rational classification where grossly dissimilar subjects are treated by the law violates the mandate of Art. 14. Even so, where the limited classification adopted in the present case is based upon a relevant differentia which has a nexus to the legislative end of taxation, the Court cannot strike down the law on the score that there is room for further classification. Refusal to classify is one thing and it bears on constitutionality, not launching onto work out perfect justice is left to executive expediency and legislative judgment and not for forensicrelationship between the legislative and judicial departments of Government in the determination of the validity of classification is.... the authorities state with unanimity that the question of classification is primarily for the legislature and that it can never become a judicial question except for the purpose of determining, in any given situation whether the legislative action is clearly unreasonable. The legislative classification is subject to judicial revision only to the extent of seeing that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones used for the purposes of evading the constitutional prohibition.We have said enough to delineate the finer frontiers of the jurisdiction of the Court and the legislature. Having sensitive regard to the obligation of the State to bring the law, including the tax law, into pulsing relationship with life, including the life of the countrys economy, we see nothing so grossly unfair as to attract the lethal power of the Court to strike down the notification under challenge. | 0 | 5,804 | 1,586 | ### 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:
has not made the classification which commends to the Court as proper. Nor can the legislative power be said to have been unconstitutionally exercised because within the class a sub-classification was reasonable but has not been made.19. It is well established that the modern State, in exercising its sovereign power of taxation, has to deal with complex factors relating to the objects to the taxed, the quantum to be levied, the conditions subject to which the levy has to be made, the social and economic policies which the tax is designed to subserve, and what not. In the famous words of Holmes, J. in Bain Peanut Co. v. Pinson, (1930) 282 US 499; 501:"We must remember that the machinery of Government would not work if it were not allowed a little play in its joints."20. In the present case, a pertinent principle of differentiation, which is visibly linked to productive process, has been adopted in the broad classification of power users and manual manufacturers. It is irrational to castigate this basis as unreal. Indeed, the soundness of this distinction is not denied. The challenge is founded on the failure to mini-classify between large and small sections of manual match manufacturers. But ours is not to reason why, that being a policy decision of Government dependent on pragmatic wisdom playing on imponderable forces at work. Our jurisdiction halts where the constitution touchstone of a rational differntia having a just relation to the legislative end to revenue raising is satisfied. Gratuitous judicial advice on the socialistic direction of fiscal policy is de trop. We desist from that enterprise and leave the petitioners and men of his ilk to seek other democratic remedies in that behalf, it being beyond our area normally to demolish the tax structure because micro-classification among a large group has not been done by the State. Absolute justice to every producer is a self-defeating adventure for any administration and general direction, not minute classification, is all that can be attempted. For these reasons we find ourselves in agreement with the High Court in its refusal to strike down the notification under S. 3 of the Central Excises and Salt Act, 1944.21. Before concluding we may make a passing reference to the few decision cited by appellants counsel. In K. T. Moopi Nair v. State of Kerala, (1961) 3 SCR 77 = (AIR 1961 SC 552 ) Sinha, C.J., emphasized that Art. 14 may be violated even though the law may, on the face, be equal if in substance unequal things are treated equally. In State of Kerala v. Haji K. Haji Kutty Naha, Civil Appeals Nos. 1052 etc. of 1968 judgment D/- 13-8-1968 = (reported in AIR 1969 SC 378 ), Shah J., observed:"Where objects, persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, in our view, refusal to make a rational classification may itself in some cases operate as denial of equality."A similar view has been taken in Khandige Sham Bhat v. The Agricultural Income-tax Officer, (1963) 3 SCR 809 , 817 = (AIR 1963 SC 591 ).22. It is sound law that refusal to make rational classification where grossly dissimilar subjects are treated by the law violates the mandate of Art. 14. Even so, where the limited classification adopted in the present case is based upon a relevant differentia which has a nexus to the legislative end of taxation, the Court cannot strike down the law on the score that there is room for further classification. Refusal to classify is one thing and it bears on constitutionality, not launching on micro-classification to work out perfect justice is left to executive expediency and legislative judgment and not for forensic wisdom."The relationship between the legislative and judicial departments of Government in the determination of the validity of classification is well-settled .... the authorities state with unanimity that the question of classification is primarily for the legislature and that it can never become a judicial question except for the purpose of determining, in any given situation whether the legislative action is clearly unreasonable. The legislative classification is subject to judicial revision only to the extent of seeing that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones used for the purposes of evading the constitutional prohibition.(American Jurisprudence 2d : Vol. 16 para 496)."In a classification for Governmental purposes there cannot be an exact exclusion or inclusion of persons and things. The constitutional command for a state to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula. Classification in law, as in the other departments of knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars, and differ from other things in those particulars. It is almost impossible in some matters to foresee and provide for every imaginable and exceptional case, and a legislature ought not to be required to do so at the risk of having its legislation declared void, although appropriate and proper upon the general subject upon which such legislation is to act, so long as there is no substantial and fair ground to say that the statute makes an unreasonable and unfounded general classification, and thereby denies to any person the equal protection of the laws. Hence, a large latitude is allowed to the States for classification upon any reasonable basis, and what is reasonable is a question of practical details into which fiction cannot enter." (ibid; para 504).23. We have said enough to delineate the finer frontiers of the jurisdiction of the Court and the legislature. Having sensitive regard to the obligation of the State to bring the law, including the tax law, into pulsing relationship with life, including the life of the countrys economy, we see nothing so grossly unfair as to attract the lethal power of the Court to strike down the notification under challenge.
### Response:
0
### Explanation:
variety of factors which the Court will be reluctant and perhapsto investigate. In this imperfect world perfection even in grouping is an ambition hardly ever accomplished. In this context, we have to remember the relationship between the legislative and judicial departments of Government in the determination of the validity of classification. Of course, in the last analysis courts possess the power to pronounce on the constitutionality of the acts of the other branches whether a classification is based upon substantial differences or is arbitrary, fanciful and consequently illegal. At the same time, the question of classification is primarily for legislative judgment and ordinarily does not become a judicial question. A power to classify being extremely broad and based on deverse considerations of executive pragmatism, the judicature cannot rush in where even the legislature warily treads. All these operational restrints on judicial power must weigh more emphatically where the subject is taxation.16. One facet of the equal protection clause, upheld by the Indian Courts and relevant to the present case, is that while similar things must be treated similarly, dismilar things should not be treated similarly. There can be hostile discrimination while maintaining a facade of equality.Another proposition which is equally settled is that merely because there is room for classification it does not follow that legislation without classification is always unconstitutional. The Court cannot strike down a law because it has not made the classification which commends to the Court as proper. Nor can the legislative power be said to have been unconstitutionally exercised because within the class awas reasonable but has not been made.19. It is well established that the modern State, in exercising its sovereign power of taxation, has to deal with complex factors relating to the objects to the taxed, the quantum to be levied, the conditions subject to which the levy has to be made, the social and economic policies which the tax is designed to subserve, and what not. In the famous words of Holmes, J. in BainPeanut Co. v. Pinson, (1930) 282 USe must remember that the machinery of Government would not work if it were not allowed a little play in its joints.In the present case, a pertinent principle of differentiation, which is visibly linked to productive process, has been adopted in the broad classification of power users and manual manufacturers. It is irrational to castigate this basis as unreal. Indeed, the soundness of this distinction is not denied. The challenge is founded on the failure tobetween large and small sections of manual match manufacturers. But ours is not to reason why, that being a policy decision of Government dependent on pragmatic wisdom playing on imponderable forces at work. Our jurisdiction halts where the constitution touchstone of a rational differntia having a just relation to the legislative end to revenue raising is satisfied. Gratuitous judicial advice on the socialistic direction of fiscal policy is de trop. We desist from that enterprise and leave the petitioners and men of his ilk to seek other democratic remedies in that behalf, it being beyond our area normally to demolish the tax structure becauseamong a large group has not been done by the State. Absolute justice to every producer is aadventure for any administration and general direction, not minute classification, is all that can be attempted. For these reasons we find ourselves in agreement with the High Court in its refusal to strike down the notification under S. 3 ofthe Central Excises and Salt Act, 1944.21. Before concluding we may make a passing reference to the few decision cited by appellants counsel. In K. T. Moopi Nair v. State of Kerala, (1961) 3 SCR 77 = (AIR 1961 SC 552 ) Sinha, C.J., emphasized that Art. 14 may be violated even though the law may, on the face, be equal if in substance unequal things are treated equally. In State of Kerala v. Haji K. Haji Kutty Naha, Civil Appeals Nos. 1052 etc. of 1968 judgment D/= (reported in AIR 1969 SC 378 ), Shah J.,objects, persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, in our view, refusal to make a rational classification may itself in some cases operate as denial ofsimilar view has been taken in Khandige Sham Bhat v. The AgriculturalOfficer, (1963) 3 SCR 809 , 817 = (AIR 1963 SC 591 ).22. It is sound law that refusal to make rational classification where grossly dissimilar subjects are treated by the law violates the mandate of Art. 14. Even so, where the limited classification adopted in the present case is based upon a relevant differentia which has a nexus to the legislative end of taxation, the Court cannot strike down the law on the score that there is room for further classification. Refusal to classify is one thing and it bears on constitutionality, not launching onto work out perfect justice is left to executive expediency and legislative judgment and not for forensicrelationship between the legislative and judicial departments of Government in the determination of the validity of classification is.... the authorities state with unanimity that the question of classification is primarily for the legislature and that it can never become a judicial question except for the purpose of determining, in any given situation whether the legislative action is clearly unreasonable. The legislative classification is subject to judicial revision only to the extent of seeing that it is founded on real distinctions in the subjects classified, and not on artificial or irrelevant ones used for the purposes of evading the constitutional prohibition.We have said enough to delineate the finer frontiers of the jurisdiction of the Court and the legislature. Having sensitive regard to the obligation of the State to bring the law, including the tax law, into pulsing relationship with life, including the life of the countrys economy, we see nothing so grossly unfair as to attract the lethal power of the Court to strike down the notification under challenge.
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Securities And Exchange Board Of India Vs. Pan Asia Advisors Ltd. | said paragraph 43 and the relevant part of paragraph 46 are as under: ?43. Under Section 33(1)(j) of the Act, any agreement to sell goods at such prices as would have the effect of eliminating competition or a competitor is regarded as an agreement relating to restrictive trade practice and shall be subject to registration. The Act nowhere states that this agreement should be only in India or between Indian parties. In effect, this Section recognizes the effects doctrine, namely, where an agreement results in sale of goods at such prices which would have the effect of eliminating competition or a competitor. In the very nature of things, the sale of goods keeping in mind the definition of the word "goods" in Section 2(e) must be of goods imported into India, in the case like the present. But if we replace the word "goods" in Section 33(1)(j) with the definition of "goods" in Section 2(e)(iii), then the Section 33(1)(j) would read as follows: "Any agreement to sell goods imported into India at such prices as would have the effect of eliminating competition or a competitor." Thus, the agreement requiring registration must be in respect of goods after their import into India.? 46. It is possible that persons outside India indulge in such trade practices, not necessarily restricted to the effectuation of prices within India, which have the effect of preventing, distorting or restricting competition in India or gives rise to a restrictive trade practice within India then in respect of that restrictive trade practice, the MRTP Commission will have jurisdiction. The counsel for the respondents is right in submitting that if the effect of restrictive trade practices came to be felt in India because of a part of the trade practice being implemented here the MRTP Commission would have jurisdiction. This "effects doctrine" will clothe the MRTP Commission with jurisdiction to pass an appropriate order even though a transaction, for example, which results in exporting goods to India at predatory price, which was in effect a restrictive trade practice, had been carried out outside the territory of India if the effect of that had resulted in a restrictive trade practice in India. If power is not given to the MRTP Commission to have jurisdiction with regard to that part of trade practice in India which is restrictive in nature then it will mean that persons outside India can continue to indulge in such practices whose adverse effect is felt in India with impugnity. A competition law like the MRTP Act is a mechanism to counter cross border economic terrorism. Therefore, even though such an agreement may enter into outside the territorial jurisdiction of the Commission but if it results in a restrictive trade practice in India then the Commission will have jurisdiction under Section 37 to pass appropriate orders in respect of such restrictive trade practice.? (Emphasis added) 102. Therefore, when we apply the above principles set down in the said judgment to the case on hand, we are convinced that the principle of ?effects doctrine? will apply to the case on hand since we have found that in the event of the allegations noted in paragraph 74 of this judgment levelled against the respondents by the appellant being established, it will have a far reaching consequence on the Indian investors on securities as well as the stock market and consequently the duty of the SEBI to protect their interests would automatically come into play as stipulated under Sections 11B, 11C, 12 and 12(A) of the SEBI Act, 1992. Therefore, the said judgment when applied carefully we find that the same supports the case of the appellant rather than the respondents. 103. In the decision reported in Vodafone International Holdings (supra), three Judge Bench considered the question whether Section 9(1)(i) of the Income Tax Act can be said to be a provision enabling the Income Tax Department to apply the principle of look through. The real issue which was considered by this Court on that aspect was based on the contention raised by the revenue that under Section 9(1)(i), ?it can look through? the transfer of shares of a foreign company, holding shares in Indian company and treat the transfer of shares in the foreign company as equivalent to the transfer of shares to Indian companies on the premise that Section 9(1)(i) covers direct and indirect transfers of capital assets. The said contention raised on behalf of the revenue was rejected by holding as under in paragraph 93: ?93. The question of providing "look through" in the statute or in the treaty is a matter of policy. It is to be expressly provided for in the statute or in the treaty. Similarly, limitation of benefits has to be expressly provided for in the treaty. Such clauses cannot be read into the Section by interpretation. For the foregoing reasons, we hold that Section 9(1)(i) is not a "look through" provision.? 104. We do not find any scope for applying the said decision to the facts of this case as we have found that the specific provisions of SEBI Act, 1992 provided for necessary powers with the SEBI casting a duty on it to protect the interests of the Indian investors as well as the stock market in India whenever it finds any fraud or other such misdeeds committed by any person which worked against the interests of Indian investors in securities. What is fraud has been sufficiently defined under Regulation 2(1)(c) of the 2003 Regulations as well as under Section 12(A) of the SEBI Act, 1992. Therefore, when such express provisions are contained in the SEBI Act and its regulations apart from specific provisions relating to issuance of GDR based on the underlying shares deposited with the Domestic Custodian Bank under the 1993 Scheme which got a statutory backing under the 2000 Regulations, we are convinced that the exercise of jurisdiction by SEBI against the respondents, having regard to the nature of allegations, listed out in paragraph 74 is well founded. | 1[ds]12. At this juncture, we want to make it very clear that we are not expressing any opinion as to the correctness or otherwise of the stand of SEBI at this momentA reading of Regulation 5 read along with paragraphs (4) & (6) of Schedule I of 2000 Regulations, as rightly pointed out by Mr.Shyam Divan gives a statutory recognition to the 1993 Scheme which came into force w.e.f 01.04.1992. It is needless to state that the said Scheme came to be issued by the Central Government in exercise of its executive powers under Article 73 of the Constitution of India. Paragraph 4 (1), (2) & (3) and paragraph 6 of Schedule I of the 2000 Regulations in effect authorises the issuance of GDRs and the Statutory requirements to be fulfilled for the issuance of such GDRs to have a valid sanction under law of the Indian origin52. A combined reading of paragraphs 2(a), (c), (d) and (e) shows that the Global Depository Receipts are issued by a company in India based on the ordinary shares deposited with the domestic custodian bank and issued by the corresponding overseas depository bank depending upon the extent of ordinary shares held by the Domestic Custodian Bank. Once such Global Depository Receipts are issued by the Overseas Depositary Bank, which has the approval of the appropriate authorities of the Indian origin as well as appropriate regulatory authority of registered agencies at the global level, the GDR becomes an approved registered authenticated instrument over which any non-resident can make an investment for possessing it as a valid holder of GDR56. As far as applicable law is concerned, it must be stated that the underlying ordinary shares of a GDR which is held by the Domestic Custodian Bank prior to such shares being created in the form of GDR have to necessarily undergo a procedure to be followed by the issuing company and for certain purposes in consultation with the Lead Manager and before the GDRs are actually created by the corresponding Overseas Depository Bank, necessary prior permission of the Department of Economic Affairs, Ministry of Finance, Government of India have to be obtained. It is based on such statutory sanction granted by the statutory authorities of Indian origin, a legally enforceable right for the purpose of creation of GDR comes into existence and based on such validity for issuance of GDRs, the Overseas Depository Bank will have the power to issue such GDR by way of negotiable form for the value to be determined by prescribing number of underlying shares that would be covered by each of the GDR. Once the GDR is thus created and issued by the overseas depository bank, again in consultation with the Lead Manager arrangements are made for being listed in the public or private listing of overseas Stock Exchanges. Thereafter the creation, existence and subsequent dealing with the GDRs outside the country of India would be governed by the relevant laws applicable to such Receipts57. Though it may appear that on the one hand underlying ordinary shares would be governed by the laws prevailing in India and the GDRs would be governed by the laws of the country in which such receipts are issued, the most relevant fact which is to be borne in mind is that the existence of GDRs is always dependent upon the extent of underlying ordinary shares lying with the Domestic Custodian Bank58. In this context, it will also be worthwhile to refer to Master Circular on Foreign Investment in India issued by the RBI, which gives detailed description about creation of GDRs which are negotiable securities issued outside India by a depository bank on behalf of an Indian company which represent the local rupee denominated equity shares of the company held as deposit by a Custodian Bank in India. The Master circular reiterates that GDRs are issued on the basis of the ratio worked out by the Indian company in consultation with the Lead Manager to the issuing company. It also highlights as to how such of those Indian listed companies which have been restrained from accessing the securities market by SEBI will be ineligible to issue GDRs59. The Master Circular also explains as to how under the two way fungibility scheme which was put in place by the Government of India for GDRs under which a stock broker in India registered with the SEBI can purchase shares of an Indian company from the market for conversion into GDRs based on instructions issued from overseas investors and also re-issuance of GDRs to be permitted to the extent of GDRs which are redeemed into underlying shares and sold in the Indian market60. On a consideration of the 2000 Regulations, the 1993 Scheme and the Master Circular issued by RBI periodically one can discern that for creation of GDRs which can be traded only at the global level, the issuing company should have developed a reputation at a level where the marketability of its investment creation potential will have a demand at the hands of the foreign investors. Simultaneously, having regard to the development of the issuing company in the market and the confidence built up with the investors both internally as well as at global level, the issuing company?s desire to raise foreign funds by creating GDRs should have the appreciation of investors for them to develop a keen interest to invest in such GDRs. Mere desire to raise foreign investments without any scope for the issuing company to develop a market demand for its GDRs by increasing the share capital for that purpose is not the underlying basis for creation of GDRs. In fact for creating of GDRs apart from the desire of the issuing company to raise foreign funds, the marketability of such shares in the form of GDRs should have an applicable potential at the global level. To put it differently, by artificial creation of global level investment operation, either the issuing company on its own or with the aid of its Lead Manager cannot attempt to make it appear as though there is scope for trading GDRs at the global level while in reality there is none. The above fact has to be kept in mind when dealing with an issue relating to creation of GDRs, in as much as, when the GDRs gets fully subscribed at the global level providing scope for huge foreign investment, the same will have a serious impact at the internal investment market in the form of high appreciation of share value whereby the issuing company and the investor will be greatly benefited mutually. Such a real growth structurally and financially is the underlying principle in the creation and trading of GDRs at the global levelThe above definition is exhaustive and includes not only shares, scripts, stocks, bonds, debentures, debenture stocks or other marketable securities of a like nature in or any incorporated company. The further definition under sub-clause (iia) covers such other instruments as may be declared by the Central Government as Securities and under sub-clause (iii) rights or interest in securities are also to be construed as securitiesTherefore reading Section 2(h)(i) and 2(h) (iii) together and apply the same to GDRs, having regard to the fact that the issuance of GDRs are always based on the underlying Indian shares deposited with the Domestic Custodian Bank and thereby the GDRs possess in it right, as well as, interest in the shares, scripts etc., it will have to be straight away held that all GDRs would fall within the definition of ‘securities? as defined under Section 2(h) of the 1956 ActThe above definition makes it clear that a ‘stock exchange? as formed under Section (2)(j)(a) & (b) are for the purpose of assisting, regulating or controlling the business of buying, selling or dealing in securities. It is true that GDRs have no time limit and can be possessed as GDRs for any number of years. However, when the holder of the GDR apart from trading with the same as GDR in the global market at any point of time wish to redeem the same or go in for fungibility of the redeemed shares back into GDRs, necessarily the holder of a GDR will have to fall back upon the stock exchanges as per the definition under Section 2(j) of the SCR Act, 1956, who alone can assist, regulate or control the business of buying, selling or dealing with securities66. Having examined the above statutory provisions, we find that a GDR is one form of ‘security? as defined under Section 2(h) of SCR Act, 1956, which is created by the issuing company of Indian origin based on underlying shares deposited with the Domestic Custodian Bank and created by the Overseas Depository Bank. Such creation is at the instance of the issuing company in India with a desire to earn foreign investments. Such investments made by the investors in the GDRs is facilitated by the Lead Manager at the time of its creation as well as its investment. Thereafter, the investors hold the GDRs either for further trading on it in the global market through the stock exchanges at global level and in the event of such investors interested in liquidating the GDR are entitled to liquidate the same through the Overseas Depository Bank, in which event the extent of underlying shares of the GDRs get transferred in the name of the investors themselves and thereby enabling such investors to trade on underlying shares in the Indian stock market or if so wish under the fungibility scheme once again get it redeemed in the form of GDR themselves67. Therefore, the creation of the GDR by the issuing company and after its creation in the fixation of price, value, marketing in the global market, the support of Lead Manager is involved and while dealing with such GDRs, the same is regulated in so far as it related to underlying shares deposited with the Domestic Custodian Bank by the laws regulating the same and prevalent in India and so far as the corresponding GDRs created based on such underlying shares are concerned, the same are governed by the laws prevailing in the respective market where such GDRs are being traded. Post cancellation of GDRs, the underlying shares deposited with the Domestic Custodian Bank is made available for trading in India depending upon the wish of the holder of GDR in the local market or for holding it as such i.e as mere shares of the issuing company or by virtue of the fungibility scheme can once again be converted as GDRs for being traded in the global marketOn a reading of the above statutory provisions, we find under Section 11(1) of the SEBI Act, 1992, a duty has been cast on the SEBI to protect the interest of investors in securities and also to promote the development of the securities market as well as for regulating the same by taking such measures as it thinks fit. The paramount purpose has been shown as protection of interest of investors on the one hand and also simultaneously for promoting the development as well as orderly regulation of the security market. By way of elaboration under Section 11(2)(a) to (e) it is stipulated that the duty of SEBI would include regulating the business in the stock exchanges and any other securities market which would include the working of stock brokers, share transfer agents and similarly placed other functionaries associated with securities market in any manner, registering and regulating the working of the depositories, participants of securities including foreign institutional investors in particular to ensure that fraudulent and unfair trade practices relating to securities markets are prohibited and also prohibiting insider trading in securitiesOn a careful reading of Section 11(4)(b), we find that the power invested with SEBI for passing such orders of restraint, the same can even be exercised against ?any person?. Under Section 11B, SEBI has been invested with powers in the interest of investors or orderly development of the securities market or to prevent the affairs of any intermediary or other persons referred to in Section 11 in themselves conducting in a manner detrimental to the interest of investors of securities market and also to secure proper management of any such intermediary or person. It can issue directions to any person or class of persons referred to in Section 11 or associated with securities market or to any company in respect of matters specified in Section 11B in the interest of investors in the securities and the securities market. The paramount duty cast upon the Board, as stated earlier, is protection of interests of investors in securities and securities market. In exercise of its powers, it can pass orders of restraint to carry out the said purpose by restraining any person. Section 12A of the SEBI Act, 1992 creates a clear prohibition of manipulating and deceptive devices, insider trading and acquisition of securities. Section 12A(a), (b) and (c) are relevant, wherein, it is stipulated that no person should directly or indirectly indulge in such manipulative and deceptive devices either directly or indirectly in connection with the issue, purchase or sale of any securities, listed or proposed to be listed wherein manipulative or deceptive device or contravention of the Act, Rules or Regulations are made or employ any device or scheme or artifice to defraud in connection with any issue or dealing in securities or engage in any act, practice or course of business which would operate as fraud or deceit on any person in connection with any issue dealing with security which are prohibited. By virtue of such clear cut prohibition set out in Section 12A of the Act, in exercise of powers under Section 11 referred to above, as well as 11B of the SEBI Act, it must be stated that the Board is fully empowered to pass appropriate orders to protect the interest of investors in securities and securities market and such orders can be passed by means of interim measure or final order as against all those specified in the above referred to provisions, as well as against any person. The purport of the statuary provision is protection of interests of investors in securities and the securities market73. Along with the Section 12A, when we read Regulation 2(1)(c) of 2003 Regulations, the act of fraud has been elaborately defined to include any kind of activity which would work against the interest of the investors in securities. Further, such interest of investors can be better ascertained by making reference to Section 2(h)(iii) of the SCR Act, 1956 which defines the ‘security? to mean the right or interest in securities. A conspectus reference to Section 12A(a) (b) and (c) read along with Regulation 2(1)(b) and (c), as well as Section 2(h)(iii) of the SCR Act, 1956 sufficiently disclose that it would cover any act which will have relevance in protecting the interest of the investors in securities and security market with any person however remotely the same are connected with such securities, in the event of such an act working against the interest of investors in securities and securities market by way of fraud which has been elaborately defined under Regulation 2(i)(c) of 2003 Regulations74. Having thus noted the statutory prescription relating to the issuance of GDR based on the underlying shares of the issuing company, the manner in which such GDRs were being traded in the global market with the support and assistance of Lead Manager, the scope of construing GDRs as ‘securities? falling under the definition of ‘securities? as defined under Section 2(h) of the SCR Act, 1956 requires to be noted. The extent of duties and powers vested with SEBI, namely, the protection of the interest of investors in securities and securities market and also the prohibitive measures as well as penal action that can be taken by SEBI whenever it comes across any fraud committed by any person relating to the interest of the investors in securities and securities market are very wideIn the light of the above features noted and alleged by SEBI as against the respondents, relating to GDRs issued by the six entities for whom the respondents acted as Lead Manager, with particular reference to the extent of the involvement of the respondents even while acting as Lead Managers, while facilitating the issuing companies in the fixation of price of the GDRs and its trading in the global market, according to SEBI, by virtue of such fraudulent nature of involvement of the respondents along with the issuing company, SEBI is entitled to invoke its jurisdiction under Section 11, 11B, 11C, 12 and 12A of the SEBI Act, 1992 read along with its 2003 Regulations and consequently its order dated 20th June 2013 debarring the respondents from rendering services in connection with the instruments which are defined as ‘securities? under Section 2(h) of the SCR Act, 1956 in the Indian market or dealing with them either directly or indirectly for a period of ten years from the date of its orders and also prohibiting them from getting access to the capital market directly or indirectly for the said period of ten years was justified. It was, therefore, contended that the majority view of the impugned order in holding that SEBI lacked jurisdiction to proceed against the respondents is liable to be set aside76. On the other hand according to the respondents, since cradle to grave GDRs are dealt with outside the country in the global market, SEBI lacks jurisdiction in proceeding against the respondents. When we consider the above respective submissions, we are convinced that the stand of the appellant that having regard to the statutory prescription under the SEBI Act, 1992, SCR Act, 1956, 2000 Regulations, 1993 Scheme as well as 2003 Regulations is well justified. Having regard to the nature of the allegations against the respondents, it possess every jurisdiction to proceed against the respondents. At the risk of repetition we wish to make it very clear that whatever factual matters we have noted, as well as those allegations levelled against the respondents by SEBI we have not expressed any opinion as to the correctness or otherwise of those factors or allegations. Those factors and allegations have been taken note of only for the purpose of deciding the question as to the jurisdiction claimed by SEBI for proceeding against the respondents. In fact, by the majority view of the impugned order, the order dated 20.06.2013 of SEBI in having debarred the respondents for a period of ten years came to be set aside on the sole ground that SEBI lacked jurisdiction. The Tribunal has not gone into the merits of the allegations levelled against the respondents. Therefore, in the event of the impugned order being set aside and thereby providing scope for the Tribunal to consider the correctness of the order dated 20.06.2013 of SEBI on merits, it will be open for the respondents to take the stand as Lead Managers that they have not committed anything wrong in order to justify the appellant to pass its order dated 20.06.201378. When we examine the said submissions of the learned senior counsel for the respondents, we find that the said submissions raised the following issues viz., that issuance of GDRs requires as many as 14 steps such as authorization by the Board of Directors, Notification to the Stock Exchange, Issuer share holders approval, appointment of a Lead Manager and other intermediaries viz., the custodian who physically hold the shares of the issuer on behalf of the depository and the overseas bankers, receiving all information, certification for due diligence and other documents, commencement and completion of due diligence for GDR issue, opening of bank account outside India, appointment of intermediaries, offer document and prospectus, decision to open the issue and price fixation, opening and closing of the issue, allotment of underlying equity shares, listing of GDRs with foreign stock exchanges and application to Indian stock exchanges for listing of underling equity shares79. The definition of ‘securities? under Section 2(h) in particular sub-clause (iii) of Section 2(h)(a) of SCR Act, 1956 makes it clear that rights and interests in securities are also to be construed as securities as defined in Section 2(h). Therefore even if GDR as such is not specifically referred to under the definition of ‘securities? under Section 2(h) by virtue of sub-clause (iii) of the said section, any rights or interests in securities would also fall within the definition of securities. Viewed in that respect, every issue of GDR is based on the underlying shares of the issuing company deposited with the Domestic Custodian Bank which clearly falls under the definition of securities of Section 2(h), the Global Deposit Receipts which create rights and interests in those securities, the Global Deposit Receipts would automatically fall and come within the definition of Section 2(h) viz., ‘securities?. Once when the said legal position is insurmountable, any argument based on the said submission should be rejectedIt is true that the creation of GDR and its trading in the global market are governed by the respective laws of the country in which they are dealt with. But one special feature to be borne in mind is that in the case on hand, the allegations levelled against the issuing company in connivance with the respondents are that a make believe affair was created, as though there was genuine creation of GDRs and its investments by the foreign investors on the very date when the GDRs were issued and thereby the global performance of the issuing company in the local market of the issuing company had a boost in the commercial sector, which lured the local investors to develop their keen interest to make the investments on a higher share value by virtue of the investment made by the foreign investors and in that process it is alleged that the issuing company itself provided every scope for the foreign investments to be financed and in reality the ultimate investment was made by Indian investors viz., the ordinary share holders. The said fact would certainly call for a probe at the hands of SEBI on whom a duty is cast under Section 11(1) to protect the interest of investors in securities and the security market81. Therefore, it is for the respondents as well as the Indian issuing company to demonstrate that any of the allegations made by the appellant in relation to the so called fraud or fictitious creation of GDRs at the global level to mislead the local investors was totally baseless and that therefore no action was called for. It will be appropriate at this stage to note that under the 2000 Regulations as well as the 1993 Scheme, one of the main reasons for creating GDRs by the issuing company is in fulfilment of its desire to gain foreign investments. It is common knowledge that in the commercial sector, companies which are in the field of manufacturing or any other business activity are able to gain the confidence of the investors by virtue of their appreciable performance in the respective manufacturing or other business activities and while controlling and developing the growth in their respective field of business, aspire to make further excellence by drawing the attention of foreign investors to make investments and thereby broad base their business venture also endeavour to sustain their development in the concerned business in which they are involved. Any such initiative taken by any entrepreneur would develop an appreciable trend in the share market which would draw the attention of the local investors to stake their claim in such well established, well grown business ventures with a view to earn better profits on whatever investments they wish to make. Therefore, if there is going to be a false pretext or misleading information circulated with a view to lure both the foreign investors as well as Indian investors and in that process the very purpose of creation and trading in GDRs are found to be not true or bona fide, it cannot be said that simply because creation of such GDRs and its trading is in global market, SEBI should keep its mouth shut on the ground that it cannot extend its long statutory arm beyond Indian territory to control any such misdeeds deliberately committed with a view to defraud the Indian investors and thereby their interest in the investment of securities and its protection is at great stake82. We are therefore convinced that having regard to the nature of allegations in the interests of investors in securities as well as the statutory obligation/duty cast upon SEBI to protect their interests, SEBI has got every jurisdiction to proceed against the respondents as well as the issuing company. The contention made on behalf of the respondents that the only authority which can proceed against the issuing company can be only for violation of the FEMA Act or the RBI Act is therefore not appealing to us. It may be that the 1993 Scheme was acknowledged under the 2000 Regulations, but on that score it cannot be held that the said Scheme or Regulations will have no application when it comes to the question of any action being initiated under the provisions of SEBI Act, 1992 read along with SCR Act, 1956. There is no statutory prohibition either under FEMA or RBI Act preventing SEBI from taking action in exercise of its powers under Section 11, 11B and 12A of the SEBI Act, 1992. That apart under Section 11(3) it is provided that SEBI can exercise its powers under sub-section 2(i) or (ia) or sub-section 2A notwithstanding anything contained in any other law for the time being in force, meaning thereby, the action that can be taken for any of the violation under FEMA or RBI Act, SEBI can validly exercise its powers under SEBI Act, 1992. Even under the 1993 Scheme as well as the 2000 Regulations, there are provisions which make specific reference to the role of SEBI in dealing with the securities. Therefore it is too late in the day for the respondents to contend that action can only be taken for any violation under the FEMA and there is no scope for invoking the provision of SEBI Act, 1992. The said submission therefore is also liable to be rejected83. In support of the contention based on applicable jurisdiction of SEBI, reliance was placed upon the opinion rendered by a law firm of United Kingdom, dated 25.07.2013. In the first place, the Courts in India cannot even be persuaded to rely upon any such opinion as opinion may differ from person to person depending upon the law which one may feel validly applies. In any event, the opinion rendered in the said document only pertains to the transactions contemplated by the documents placed before the said firm which related to the loan agreement and other connected documents. The opinion was that the documents and the performance of the transactions contemplated by the said documents were in accordance with the applicable Austrian laws and do not constitute any violation of any law or regulations of general application in Austria. There can be no conflict with the said opinion if in the consideration of the said law firm, the documents were in conformity with the laws of Austria within whose jurisdiction, the documents came to be executed and to be operated upon. In fact the action of SEBI initiated against the respondents are not on the footing that any of the documents are contrary to the laws of Austria. The initiation of proceedings by SEBI as against the respondents are entirely on a different footing which was solely based on the alleged violation of the Indian laws vis., the SEBI Act read along with the SCR Act, 1956 the provisions of 2000 Regulations and the 1993 Scheme as well as 2003 Regulations. In fact in that opinion itself it is stated that the said opinion was not to be taken to imply that any provision of the document would necessarily be capable of enforcement or be enforced in all circumstances in accordance with its terms and that it should be understood that the law firm which gave the opinion should be understood to have not been responsible for investigating or confirming the accuracy of the facts including statements of foreign law or the reasonableness of any statements or opinion contained in any of the documents. Therefore, the said document is of no use to support the stand of the respondents84. As far as the opinion rendered by solicitors firm called Singhania and Co having its office at London, dated 17.07.2013, it only states that the second respondent was the sole shareholder of Pan Asia which is now known as M/s. Global Finance Capital Limited. It only stated that in its opinion from the aspect of laws applicable and enforceable in UK, the documents and transactions pertaining to those documents relating to the respondents were in the normal course of business under the applicable laws in UK and they do not, in any manner, constitute any violation of any applicable laws of UK. It is stated that the documents and transactions were standard documents and transactions commonly executed by entities as part of mode of the lawful business activities. Here again we do not find any need to be guided by such an opinion of a law firm which only refer to the documents placed before it, which according to the said firm is in conformity with the laws of UKIt is clarified that any use, intended or otherwise, of depository receipts or market of depository receipt in a manner, which has potential to cause or has caused abuse of securities market in India, is ?market abuse? and shall be dealt with accordingly. According to Clause 10(2) for the purpose of this paragraph, ?market abuse? means any activity prohibited under Chapter V-A of the SEBI Act, 1992. Under paragraph 11 of the 2014 Scheme, the 1993 Scheme stood repealed except to the extent relating to foreign currency convertible bonds and sub-para (2) of Section 11 contains a non-obstante clause that notwithstanding such repeal, anything done or any action taken under the 1993 Scheme shall be deemed to have been done or taken under the corresponding provision of the present scheme. Under Schedule-I, the permissible jurisdiction have been listed out as on the date of the notification in which Austria is also included apart from United Kingdom and United States. The 2014 Scheme having thus explained what is ?market abuse?, it must be stated that now after the 2014 Scheme any act done under the 1993 Scheme has also been validated. The definition of ?market abuse? would squarely cover the allegation presently made by the appellant as against the respondents. Simply because ?market abuse? has been now codified under the 2014 Scheme, it cannot be held that there is no scope for proceeding against any person for indulgence in such a ?market abuse? prior to the introduction of the 2014 Scheme. As the nature of allegation which has now been explained under the caption ?market abuse? in the 2014 Scheme and having regard to the violation complained of by the appellant as against the respondents with particular reference to the substantive provision of the SEBI Act, 1992 and SCR Act, 1956, read along with the 2000 Regulations and the 1993 Scheme, the power of the appellant to proceed against the respondents based on such allegations cannot be deprived86. To support the contention that the SEBI Act, 1992 operates only within Indian territory, reference was made to the provisions contained in other Acts viz., IPC, FERA, FEMA, Companies Act, the Information Technology Act and the Income Tax Act. In the first place, the said reliance placed on the provisions of those enactments providing for extra territorial jurisdiction can have no impact on the action initiated by the appellant, for the simple reason that the violation complained of by the appellant is with reference to such of those provisions contained in SEBI Act, 1992 vis-à-vis the underlying shares of GDRs. Therefore, we are unable to see any violation of exercise of its jurisdiction since the underlying shares of GDR were created and dealt with as well as traded in the stock market of Indian Territory. Any act which caused any infringement in such trading of those underlying shares by virtue of any malfeasance or misfeasance or misdeeds committed by any person under the Act which worked against the interests of the investors in securities and the securities market, the SEBI was entitled to proceed against such persons who are involved in any of those allegations. Therefore, the reference to those provisions contained in other enactments in our considered opinion does not cause any impediment for SEBI to proceed against the respondents in exercise of its jurisdiction under the SEBI Act, 199287. In this context, it is also necessary to refer to certain compliance to be reported by the issuing company of GDR/ADR. As per paragraph 4(2) and (3) of Schedule I of 2000 Regulations, the Indian company issuing shares for the purpose of issuing GDRs should furnish to the Reserve Bank the full details of such issue in the prescribed form DR within 30 days from the date of closing of the issue. Similarly under paragraph 4(3) issuing company against GDR should furnish a quarterly return in the prescribed form DR-Quarterly to RBI within 15 days of the close of the calendar quarter. When we refer to Form DR and Form DR-quarterly, some of the details which are to be furnished are name and address of the depository abroad, name and address of the Lead Manager, name and address of the Indian custodians, details of the equity capital before issue after issue, number of GDRs issued, ratio of GDRs vis-à-vis the underlying shares, whether funds are kept abroad, if yes, name and address of the bank, amount raised in USD, amount repatriated in USD, the date of launching of GDR, total number of GDRs, total interest earned till the end of the quarter, the amount repatriated, number of GDRs still outstanding, company share price at the end of the quarter, the GDR price quoted on overseas stock exchange as at the end of the quarter and in the quarterly return, it should be certified by the authorized signatory of the company that the funds raised through GDRs/ADRs were not invested in stock market or real estate88. A perusal of the above details which are required to be furnished statutorily, shows that in the event of any wrong statement furnished in the above referred to forms, it provides scope for proceeding against the issuing company as well as any person connected with such violation and it would certainly empower the authority viz., SEBI to initiate action under the SEBI Act, 1992 in order to protect the interests of Indian investors in securities and the security marketIt is true that if in the discharge of its functions as Lead Managers, the respondents had confined to their activities to any of the procedures set out in the said paragraph, it will be for the respondents to demonstrate before the appellant and come out unscathed. However, if under the guise of performing those functions as Lead Managers, if as pointed out by the appellant, the respondents had indulged in any activities which were contrary to the provisions of SEBI Act, 1992 read along with SCR Act, 1956, which provided scope for proceeding against them for having acted against the interests of the Indian investors in securities and the security market or were involved in collusion with any alleged act of the issuing company in violation of the statutory prescriptions of SEBI Act, 1992, SCR Act, 1956, 2000 Regulations read along with 1993 Scheme, it is the bounden duty of the respondents to demonstrate before the appellant and now before the Tribunal that no such involvement by the respondents is made out in order to proceed against them as has been decided and orders passed by the appellant in its order dated 20.06.201391. As far as the stand of the second respondent that he is a non-resident Indian residing in Dubai till September, 2011 and was the Managing Director of the first respondent and that the first respondent is a distinct and separate legal entity from the second respondent and therefore the first respondent cannot be made liable or responsible for the action of the second respondent, it must be stated that even as per the legal opinion of M/s. Singhania and Co the Solicitors and Indian Advocates based at London who have stated apparently on the instructions of the second respondent, that he was the sole shareholder of the first respondent who is a non-resident Indian residing at Dubai. Therefore, it is too late in the day for the respondents in attempting to get themselves excluded from the alleged violations as against the issuing companies along with the respondents, which resulted in the passing of the order of debarment dated 20.06.201392. For the very same reasons, the stand of the second respondent that he is not an intermediary and his role in relation to GDR was limited to advising for the listing of GDRs etc., would not absolve the second respondent from facing the action initiated by the appellant93. As far as the contention raised by the second respondent in paragraph M, N etc., we do not wish to go into the said stand so made by the second respondent, as it is for the second respondent to convince the appellant and now before the Tribunal that he cannot be proceeded against for any of the alleged violations. Similarly, the stand of the respondents by making reference to the core features of the GDR issues, to contend that there was no requirement to bring GDR proceeds into India and that there was no allegation that its funds were used for prohibited activities i.e. stock exchange transaction or real estate transaction as prescribed in 1993 Scheme and that the subscription of the GDR issued in USD become available to the issuing company were all matters the respondents can validly explain and substantiate the same before the Tribunal while challenging the merits of the order passed by the appellant in the order dated 20.06.2013A reading of the above judgment makes it clear that a law enacted by Parliament if shows that for proceeding against in exercise of any extra territorial aspect, which has got a cause and something in India or related to India and Indians in terms of impact, effect or consequence would be a mixed matter of facts and of law, then the Courts have to enforce such a requirement in the operation of law as a matter of law itself. The Constitution Bench, however, held that Parliament has no power to legislate for any territory other than the territory of India or other part of India with respect to aspects or causes which have no impact or nexus with India as was explained in question No.1. Keeping the said principle thus pronounced by this Court in mind, when we examine the SEBI Act, 1992 read along with SCR Act, 1956 as well as the 1993 Scheme, we find that the Act itself provides for proceeding against any person in order to protect the interests of investors and the stock market in India with reference to any fraud played against such interest of the investors in India. Therefore, the answer to the first question as pronounced by the Constitution Bench applies in all force to the case on handWe fully concur with the said view expressed by the learned Judge and applying the said principle, even if the law applies to persons who are not corporally present within the territory of India, even if they are citizens abroad when such persons commit acts which affects the legitimate interest of this country which would include such legitimate interest in the case on hand of the investors in India at the stock market, it must be held that the appellant would be fully empowered to proceed against such persons as provided under the provisions of SEBI Act, 1992Therefore, when we apply the above principles set down in the said judgment to the case on hand, we are convinced that the principle of ?effects doctrine? will apply to the case on hand since we have found that in the event of the allegations noted in paragraph 74 of this judgment levelled against the respondents by the appellant being established, it will have a far reaching consequence on the Indian investors on securities as well as the stock market and consequently the duty of the SEBI to protect their interests would automatically come into play as stipulated under Sections 11B, 11C, 12 and 12(A) of the SEBI Act, 1992. Therefore, the said judgment when applied carefully we find that the same supports the case of the appellant rather than the respondentsWe do not find any scope for applying the said decision to the facts of this case as we have found that the specific provisions of SEBI Act, 1992 provided for necessary powers with the SEBI casting a duty on it to protect the interests of the Indian investors as well as the stock market in India whenever it finds any fraud or other such misdeeds committed by any person which worked against the interests of Indian investors in securities. What is fraud has been sufficiently defined under Regulation 2(1)(c) of the 2003 Regulations as well as under Section 12(A) of the SEBI Act, 1992. Therefore, when such express provisions are contained in the SEBI Act and its regulations apart from specific provisions relating to issuance of GDR based on the underlying shares deposited with the Domestic Custodian Bank under the 1993 Scheme which got a statutory backing under the 2000 Regulations, we are convinced that the exercise of jurisdiction by SEBI against the respondents, having regard to the nature of allegations, listed out in paragraph 74 is well founded. | 1 | 25,226 | 7,653 | ### Instruction:
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said paragraph 43 and the relevant part of paragraph 46 are as under: ?43. Under Section 33(1)(j) of the Act, any agreement to sell goods at such prices as would have the effect of eliminating competition or a competitor is regarded as an agreement relating to restrictive trade practice and shall be subject to registration. The Act nowhere states that this agreement should be only in India or between Indian parties. In effect, this Section recognizes the effects doctrine, namely, where an agreement results in sale of goods at such prices which would have the effect of eliminating competition or a competitor. In the very nature of things, the sale of goods keeping in mind the definition of the word "goods" in Section 2(e) must be of goods imported into India, in the case like the present. But if we replace the word "goods" in Section 33(1)(j) with the definition of "goods" in Section 2(e)(iii), then the Section 33(1)(j) would read as follows: "Any agreement to sell goods imported into India at such prices as would have the effect of eliminating competition or a competitor." Thus, the agreement requiring registration must be in respect of goods after their import into India.? 46. It is possible that persons outside India indulge in such trade practices, not necessarily restricted to the effectuation of prices within India, which have the effect of preventing, distorting or restricting competition in India or gives rise to a restrictive trade practice within India then in respect of that restrictive trade practice, the MRTP Commission will have jurisdiction. The counsel for the respondents is right in submitting that if the effect of restrictive trade practices came to be felt in India because of a part of the trade practice being implemented here the MRTP Commission would have jurisdiction. This "effects doctrine" will clothe the MRTP Commission with jurisdiction to pass an appropriate order even though a transaction, for example, which results in exporting goods to India at predatory price, which was in effect a restrictive trade practice, had been carried out outside the territory of India if the effect of that had resulted in a restrictive trade practice in India. If power is not given to the MRTP Commission to have jurisdiction with regard to that part of trade practice in India which is restrictive in nature then it will mean that persons outside India can continue to indulge in such practices whose adverse effect is felt in India with impugnity. A competition law like the MRTP Act is a mechanism to counter cross border economic terrorism. Therefore, even though such an agreement may enter into outside the territorial jurisdiction of the Commission but if it results in a restrictive trade practice in India then the Commission will have jurisdiction under Section 37 to pass appropriate orders in respect of such restrictive trade practice.? (Emphasis added) 102. Therefore, when we apply the above principles set down in the said judgment to the case on hand, we are convinced that the principle of ?effects doctrine? will apply to the case on hand since we have found that in the event of the allegations noted in paragraph 74 of this judgment levelled against the respondents by the appellant being established, it will have a far reaching consequence on the Indian investors on securities as well as the stock market and consequently the duty of the SEBI to protect their interests would automatically come into play as stipulated under Sections 11B, 11C, 12 and 12(A) of the SEBI Act, 1992. Therefore, the said judgment when applied carefully we find that the same supports the case of the appellant rather than the respondents. 103. In the decision reported in Vodafone International Holdings (supra), three Judge Bench considered the question whether Section 9(1)(i) of the Income Tax Act can be said to be a provision enabling the Income Tax Department to apply the principle of look through. The real issue which was considered by this Court on that aspect was based on the contention raised by the revenue that under Section 9(1)(i), ?it can look through? the transfer of shares of a foreign company, holding shares in Indian company and treat the transfer of shares in the foreign company as equivalent to the transfer of shares to Indian companies on the premise that Section 9(1)(i) covers direct and indirect transfers of capital assets. The said contention raised on behalf of the revenue was rejected by holding as under in paragraph 93: ?93. The question of providing "look through" in the statute or in the treaty is a matter of policy. It is to be expressly provided for in the statute or in the treaty. Similarly, limitation of benefits has to be expressly provided for in the treaty. Such clauses cannot be read into the Section by interpretation. For the foregoing reasons, we hold that Section 9(1)(i) is not a "look through" provision.? 104. We do not find any scope for applying the said decision to the facts of this case as we have found that the specific provisions of SEBI Act, 1992 provided for necessary powers with the SEBI casting a duty on it to protect the interests of the Indian investors as well as the stock market in India whenever it finds any fraud or other such misdeeds committed by any person which worked against the interests of Indian investors in securities. What is fraud has been sufficiently defined under Regulation 2(1)(c) of the 2003 Regulations as well as under Section 12(A) of the SEBI Act, 1992. Therefore, when such express provisions are contained in the SEBI Act and its regulations apart from specific provisions relating to issuance of GDR based on the underlying shares deposited with the Domestic Custodian Bank under the 1993 Scheme which got a statutory backing under the 2000 Regulations, we are convinced that the exercise of jurisdiction by SEBI against the respondents, having regard to the nature of allegations, listed out in paragraph 74 is well founded.
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appellant in its order dated 20.06.201391. As far as the stand of the second respondent that he is a non-resident Indian residing in Dubai till September, 2011 and was the Managing Director of the first respondent and that the first respondent is a distinct and separate legal entity from the second respondent and therefore the first respondent cannot be made liable or responsible for the action of the second respondent, it must be stated that even as per the legal opinion of M/s. Singhania and Co the Solicitors and Indian Advocates based at London who have stated apparently on the instructions of the second respondent, that he was the sole shareholder of the first respondent who is a non-resident Indian residing at Dubai. Therefore, it is too late in the day for the respondents in attempting to get themselves excluded from the alleged violations as against the issuing companies along with the respondents, which resulted in the passing of the order of debarment dated 20.06.201392. For the very same reasons, the stand of the second respondent that he is not an intermediary and his role in relation to GDR was limited to advising for the listing of GDRs etc., would not absolve the second respondent from facing the action initiated by the appellant93. As far as the contention raised by the second respondent in paragraph M, N etc., we do not wish to go into the said stand so made by the second respondent, as it is for the second respondent to convince the appellant and now before the Tribunal that he cannot be proceeded against for any of the alleged violations. Similarly, the stand of the respondents by making reference to the core features of the GDR issues, to contend that there was no requirement to bring GDR proceeds into India and that there was no allegation that its funds were used for prohibited activities i.e. stock exchange transaction or real estate transaction as prescribed in 1993 Scheme and that the subscription of the GDR issued in USD become available to the issuing company were all matters the respondents can validly explain and substantiate the same before the Tribunal while challenging the merits of the order passed by the appellant in the order dated 20.06.2013A reading of the above judgment makes it clear that a law enacted by Parliament if shows that for proceeding against in exercise of any extra territorial aspect, which has got a cause and something in India or related to India and Indians in terms of impact, effect or consequence would be a mixed matter of facts and of law, then the Courts have to enforce such a requirement in the operation of law as a matter of law itself. The Constitution Bench, however, held that Parliament has no power to legislate for any territory other than the territory of India or other part of India with respect to aspects or causes which have no impact or nexus with India as was explained in question No.1. Keeping the said principle thus pronounced by this Court in mind, when we examine the SEBI Act, 1992 read along with SCR Act, 1956 as well as the 1993 Scheme, we find that the Act itself provides for proceeding against any person in order to protect the interests of investors and the stock market in India with reference to any fraud played against such interest of the investors in India. Therefore, the answer to the first question as pronounced by the Constitution Bench applies in all force to the case on handWe fully concur with the said view expressed by the learned Judge and applying the said principle, even if the law applies to persons who are not corporally present within the territory of India, even if they are citizens abroad when such persons commit acts which affects the legitimate interest of this country which would include such legitimate interest in the case on hand of the investors in India at the stock market, it must be held that the appellant would be fully empowered to proceed against such persons as provided under the provisions of SEBI Act, 1992Therefore, when we apply the above principles set down in the said judgment to the case on hand, we are convinced that the principle of ?effects doctrine? will apply to the case on hand since we have found that in the event of the allegations noted in paragraph 74 of this judgment levelled against the respondents by the appellant being established, it will have a far reaching consequence on the Indian investors on securities as well as the stock market and consequently the duty of the SEBI to protect their interests would automatically come into play as stipulated under Sections 11B, 11C, 12 and 12(A) of the SEBI Act, 1992. Therefore, the said judgment when applied carefully we find that the same supports the case of the appellant rather than the respondentsWe do not find any scope for applying the said decision to the facts of this case as we have found that the specific provisions of SEBI Act, 1992 provided for necessary powers with the SEBI casting a duty on it to protect the interests of the Indian investors as well as the stock market in India whenever it finds any fraud or other such misdeeds committed by any person which worked against the interests of Indian investors in securities. What is fraud has been sufficiently defined under Regulation 2(1)(c) of the 2003 Regulations as well as under Section 12(A) of the SEBI Act, 1992. Therefore, when such express provisions are contained in the SEBI Act and its regulations apart from specific provisions relating to issuance of GDR based on the underlying shares deposited with the Domestic Custodian Bank under the 1993 Scheme which got a statutory backing under the 2000 Regulations, we are convinced that the exercise of jurisdiction by SEBI against the respondents, having regard to the nature of allegations, listed out in paragraph 74 is well founded.
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Thanjavur Textiles Limited Vs. B. Purushotham and Others | that event, the advocate could only record the evidence and could have given any findings on the merits as to misconduct of the workmen. Reliance was placed on the observations of this Court in Workmen v. Buckingham & Carnatic Mills 1969 SC 11. Our attention was also drawn by the learned counsel on both the sides to the decisions of this Court in Dalmia Dadri Cement Ltd. v. Murari Lal Bikaneria 1970 SC 30 and to Central Bank of India v. C. Bernard 1990 II 15 CLR 771 S.C. 7. The relevant portion of the standing order in sub-clause (c) of clause 62 reads as follows : "The Manager may himself or through some other responsible Officer make such enquiry and the workman shall present himself at the time and date fixed for such enquiry." 8. There was considered debate before us in regard to the meaning of the words employed in the above sub-clause (c) of clause 62. The words "other responsible officer referred to in this case could only be an officer of the Company subordinate to the Manager and not an outsider, according to Shri S. Ravindra Bhat, learned counsel for the respondents and hence the advocate could not have been appointed as an enquiry officer nor could he give findings on the merits of the misconduct. 9. The learned Senior Counsel for the appellant, however, referred to the cases referred to above and submitted before us that even going by the language of the above clause and to the observation in the abovesaid judgments, it was permissible for the Manager to appoint an advocate as an enquiry officer. On the other hand, learned counsel for the respondent-workmen contended that the language of the clause in the standing order in this case was different from the language employed in the standing orders in the decided cases. In the present case, the standing order contemplated an enquiry to be conducted only by a responsible officer of the Company, subordinate to the Manager. 10. We, however, find it not necessary to go into this controversy in view of the concession made by the learned Senior Counsel who appeared for the workmen before the Division Bench of the High Court to the effect that he was not raising the "extreme contention" that the enquiry, on the facts of his case, could not have been conducted by an advocate. In view of the said concession, we are not going into the submission before us as to whether the language of the particular clause in the standing order did or did not permit the Manager to appoint an advocate as an enquiry officer. 11. We, therefore, proceed on the assumption that it was permissible for the Manager to appoint an advocate as an enquiry officer. 12. Even so, learned counsel for the respondents contended that in cases where a person outside the company was appointed as an enquiry officer, he would not be entitled to give findings as to the misconduct of the workmen. According to him, the advocate would only be entitled to record the evidence and send the same to the disciplinary authority. There could not be any delegation to the advocate in respect of the quasi-judicial function. 13. Once it was conceded in the High Court by the learned Senior Counsel who appeared for the workmen that an advocate could be appointed as an enquiry officer, the advocate would, in our opinion, have all the normal powers of an enquiry officer including the power to give findings as to the misconduct of the employees. We are unable to make a distinction between the powers of an enquiry officer who is an employee of the Company and an outsider. If the Manager was entitled to appoint an enquiry officer, in either case, the appointee in his capacity as an enquiry officer, would have the same powers. We accordingly hold that the advocate in this case could have given findings as to misconduct and the Division Bench of the High Court was wrong in thinking that the advocate being an outsider would not have the power to give findings as to the misconduct of the employees. 14. We may point out that in the case cited by the learned Senior Counsel for the appellant in Khardah & Co. it was stated as follows : "We are not prepared to adopt such a course. If industrial adjudication attaches importance to domestic enquiries and the conclusions reached at the end of such enquiries, that necessarily postulates that the enquiry officer. It may be that the enquiry officer need not write a very long or elaborate report; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusion and to indicate briefly his reasons for reaching the said conclusion." * 15. So far as the judgment in Workmen v. Buckingham and Carnatic Mills is concerned, it was pointed out in that case that the relevant standing order did not permit any delegation whatsoever. Even so, if the authority concerned had merely delegated power to record evidence, there was nothing wrong in such a delegation as long as the delegate did not express any opinion on the merits of the case. The abovesaid decision is clearly distinguishable inasmuch as the relevant standing order in that case did not envisage the appointment of any enquiry officer whatsoever. But in the present case, the standing order does expressly contemplate appointment of an enquiry officer and if that is the position, the enquiry officer so appointed would, in our opinion, be certainly entitled to give findings in regard to the misconduct of the employees. The above decision is therefore clearly distinguishable. The Division Bench of the High Court in the judgment under appeal in our opinion erred in not noticing the abovesaid distinction. There was no provision in the standing orders in the above-cited case permitting appointment of another person to conduct the enquiry. | 1[ds]10. We, however, find it not necessary to go into this controversy in view of the concession made by the learned Senior Counsel who appeared for the workmen before the Division Bench of the High Court to the effect that he was not raising the "extreme contention" that the enquiry, on the facts of his case, could not have been conducted by an advocate. In view of the said concession, we are not going into the submission before us as to whether the language of the particular clause in the standing order did or did not permit the Manager to appoint an advocate as an enquiry officer11. We, therefore, proceed on the assumption that it was permissible for the Manager to appoint an advocate as an enquiry officer12. Even so, learned counsel for the respondents contended that in cases where a person outside the company was appointed as an enquiry officer, he would not be entitled to give findings as to the misconduct of the workmen. According to him, the advocate would only be entitled to record the evidence and send the same to the disciplinary authority. There could not be any delegation to the advocate in respect of the13. Once it was conceded in the High Court by the learned Senior Counsel who appeared for the workmen that an advocate could be appointed as an enquiry officer, the advocate would, in our opinion, have all the normal powers of an enquiry officer including the power to give findings as to the misconduct of the employees. We are unable to make a distinction between the powers of an enquiry officer who is an employee of the Company and an outsider. If the Manager was entitled to appoint an enquiry officer, in either case, the appointee in his capacity as an enquiry officer, would have the same powers. We accordingly hold that the advocate in this case could have given findings as to misconduct and the Division Bench of the High Court was wrong in thinking that the advocate being an outsider would not have the power to give findings as to the misconduct of the employees14. We may point out that in the case cited by the learned Senior Counsel for the appellant in KhardahCo. it was stated as follows :"We are not prepared to adopt such a course. If industrial adjudication attaches importance to domestic enquiries and the conclusions reached at the end of such enquiries, that necessarily postulates that the enquiry officer. It may be that the enquiry officer need not write a very long or elaborate report; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusion and to indicate briefly his reasons for reaching the said conclusion." *15. So far as the judgment in Workmen v. Buckingham and Carnatic Mills is concerned, it was pointed out in that case that the relevant standing order did not permit any delegation whatsoever. Even so, if the authority concerned had merely delegated power to record evidence, there was nothing wrong in such a delegation as long as the delegate did not express any opinion on the merits of the case. The abovesaid decision is clearly distinguishable inasmuch as the relevant standing order in that case did not envisage the appointment of any enquiry officer whatsoever. But in the present case, the standing order does expressly contemplate appointment of an enquiry officer and if that is the position, the enquiry officer so appointed would, in our opinion, be certainly entitled to give findings in regard to the misconduct of the employees. The above decision is therefore clearly distinguishable. The Division Bench of the High Court in the judgment under appeal in our opinion erred in not noticing the abovesaid distinction. There was no provision in the standing orders in thed case permitting appointment of another person to conduct the enquiry. | 1 | 1,766 | 714 | ### Instruction:
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that event, the advocate could only record the evidence and could have given any findings on the merits as to misconduct of the workmen. Reliance was placed on the observations of this Court in Workmen v. Buckingham & Carnatic Mills 1969 SC 11. Our attention was also drawn by the learned counsel on both the sides to the decisions of this Court in Dalmia Dadri Cement Ltd. v. Murari Lal Bikaneria 1970 SC 30 and to Central Bank of India v. C. Bernard 1990 II 15 CLR 771 S.C. 7. The relevant portion of the standing order in sub-clause (c) of clause 62 reads as follows : "The Manager may himself or through some other responsible Officer make such enquiry and the workman shall present himself at the time and date fixed for such enquiry." 8. There was considered debate before us in regard to the meaning of the words employed in the above sub-clause (c) of clause 62. The words "other responsible officer referred to in this case could only be an officer of the Company subordinate to the Manager and not an outsider, according to Shri S. Ravindra Bhat, learned counsel for the respondents and hence the advocate could not have been appointed as an enquiry officer nor could he give findings on the merits of the misconduct. 9. The learned Senior Counsel for the appellant, however, referred to the cases referred to above and submitted before us that even going by the language of the above clause and to the observation in the abovesaid judgments, it was permissible for the Manager to appoint an advocate as an enquiry officer. On the other hand, learned counsel for the respondent-workmen contended that the language of the clause in the standing order in this case was different from the language employed in the standing orders in the decided cases. In the present case, the standing order contemplated an enquiry to be conducted only by a responsible officer of the Company, subordinate to the Manager. 10. We, however, find it not necessary to go into this controversy in view of the concession made by the learned Senior Counsel who appeared for the workmen before the Division Bench of the High Court to the effect that he was not raising the "extreme contention" that the enquiry, on the facts of his case, could not have been conducted by an advocate. In view of the said concession, we are not going into the submission before us as to whether the language of the particular clause in the standing order did or did not permit the Manager to appoint an advocate as an enquiry officer. 11. We, therefore, proceed on the assumption that it was permissible for the Manager to appoint an advocate as an enquiry officer. 12. Even so, learned counsel for the respondents contended that in cases where a person outside the company was appointed as an enquiry officer, he would not be entitled to give findings as to the misconduct of the workmen. According to him, the advocate would only be entitled to record the evidence and send the same to the disciplinary authority. There could not be any delegation to the advocate in respect of the quasi-judicial function. 13. Once it was conceded in the High Court by the learned Senior Counsel who appeared for the workmen that an advocate could be appointed as an enquiry officer, the advocate would, in our opinion, have all the normal powers of an enquiry officer including the power to give findings as to the misconduct of the employees. We are unable to make a distinction between the powers of an enquiry officer who is an employee of the Company and an outsider. If the Manager was entitled to appoint an enquiry officer, in either case, the appointee in his capacity as an enquiry officer, would have the same powers. We accordingly hold that the advocate in this case could have given findings as to misconduct and the Division Bench of the High Court was wrong in thinking that the advocate being an outsider would not have the power to give findings as to the misconduct of the employees. 14. We may point out that in the case cited by the learned Senior Counsel for the appellant in Khardah & Co. it was stated as follows : "We are not prepared to adopt such a course. If industrial adjudication attaches importance to domestic enquiries and the conclusions reached at the end of such enquiries, that necessarily postulates that the enquiry officer. It may be that the enquiry officer need not write a very long or elaborate report; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusion and to indicate briefly his reasons for reaching the said conclusion." * 15. So far as the judgment in Workmen v. Buckingham and Carnatic Mills is concerned, it was pointed out in that case that the relevant standing order did not permit any delegation whatsoever. Even so, if the authority concerned had merely delegated power to record evidence, there was nothing wrong in such a delegation as long as the delegate did not express any opinion on the merits of the case. The abovesaid decision is clearly distinguishable inasmuch as the relevant standing order in that case did not envisage the appointment of any enquiry officer whatsoever. But in the present case, the standing order does expressly contemplate appointment of an enquiry officer and if that is the position, the enquiry officer so appointed would, in our opinion, be certainly entitled to give findings in regard to the misconduct of the employees. The above decision is therefore clearly distinguishable. The Division Bench of the High Court in the judgment under appeal in our opinion erred in not noticing the abovesaid distinction. There was no provision in the standing orders in the above-cited case permitting appointment of another person to conduct the enquiry.
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10. We, however, find it not necessary to go into this controversy in view of the concession made by the learned Senior Counsel who appeared for the workmen before the Division Bench of the High Court to the effect that he was not raising the "extreme contention" that the enquiry, on the facts of his case, could not have been conducted by an advocate. In view of the said concession, we are not going into the submission before us as to whether the language of the particular clause in the standing order did or did not permit the Manager to appoint an advocate as an enquiry officer11. We, therefore, proceed on the assumption that it was permissible for the Manager to appoint an advocate as an enquiry officer12. Even so, learned counsel for the respondents contended that in cases where a person outside the company was appointed as an enquiry officer, he would not be entitled to give findings as to the misconduct of the workmen. According to him, the advocate would only be entitled to record the evidence and send the same to the disciplinary authority. There could not be any delegation to the advocate in respect of the13. Once it was conceded in the High Court by the learned Senior Counsel who appeared for the workmen that an advocate could be appointed as an enquiry officer, the advocate would, in our opinion, have all the normal powers of an enquiry officer including the power to give findings as to the misconduct of the employees. We are unable to make a distinction between the powers of an enquiry officer who is an employee of the Company and an outsider. If the Manager was entitled to appoint an enquiry officer, in either case, the appointee in his capacity as an enquiry officer, would have the same powers. We accordingly hold that the advocate in this case could have given findings as to misconduct and the Division Bench of the High Court was wrong in thinking that the advocate being an outsider would not have the power to give findings as to the misconduct of the employees14. We may point out that in the case cited by the learned Senior Counsel for the appellant in KhardahCo. it was stated as follows :"We are not prepared to adopt such a course. If industrial adjudication attaches importance to domestic enquiries and the conclusions reached at the end of such enquiries, that necessarily postulates that the enquiry officer. It may be that the enquiry officer need not write a very long or elaborate report; but since his findings are likely to lead to the dismissal of the employee, it is his duty to record clearly and precisely his conclusion and to indicate briefly his reasons for reaching the said conclusion." *15. So far as the judgment in Workmen v. Buckingham and Carnatic Mills is concerned, it was pointed out in that case that the relevant standing order did not permit any delegation whatsoever. Even so, if the authority concerned had merely delegated power to record evidence, there was nothing wrong in such a delegation as long as the delegate did not express any opinion on the merits of the case. The abovesaid decision is clearly distinguishable inasmuch as the relevant standing order in that case did not envisage the appointment of any enquiry officer whatsoever. But in the present case, the standing order does expressly contemplate appointment of an enquiry officer and if that is the position, the enquiry officer so appointed would, in our opinion, be certainly entitled to give findings in regard to the misconduct of the employees. The above decision is therefore clearly distinguishable. The Division Bench of the High Court in the judgment under appeal in our opinion erred in not noticing the abovesaid distinction. There was no provision in the standing orders in thed case permitting appointment of another person to conduct the enquiry.
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Western States Trading Co Ltd Vs. Commissioner Of Income Tax, Central Calcutta | the present appeals we are concerned with the first and the second question. It has been submitted on behalf of the appellant that the loss of Rs. 11,257/- was allowable under S. 10 (2) (vii) of the Act in computing the total income of the appellant. The Tribunal had recorded a finding which was one of fact; that in the relevant accounting year the appellant did carry on the colliery business. The finding of the Tribunal had not been challenged by the department by raising an appropriate question and therefore it was not open to the High Court to go against the finding of the Tribunal and hold that the business was carried on for and on account of the purchaser. At any rate it was an undisputable fact that the appellant carried on the business upto November 29, 1954 and it was only by virtue of the agreement made on that day that it agreed to treat the business as having been transferred to the purchaser with effect from September 1, 1954. By means of the agreement it was not possible to alter the actual state of affairs, namely, the carrying on of the business by the appellant. 7. In our judgment there is a good deal of substance in the above contentions urged on behalf of the appellant. The Tribunal had, in clear and unequivocal terms, upheld the contention of the appellant that it had actually carried on the business till November 29,1954. Section 10 (2) (vii) provides that profits or gains shall be computed after making the allowance in respect of any such building, machinery or plant which had been sold etc. the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant is actually sold or its scrap value. The first proviso requires that such amount should actually be written off in the books of the assessee. It is difficult to see how all the conditions necessary for the allowance under the above provisions were not satisfied. The colliery business was carried on by the appellant during part of the relevant accounting year. The machinery and plant had been used for the purpose of the business. The sale of the colliery took place during the accounting year. The loss of Rupees 11, 257/- was written off in the books of the appellant. The present case appears to be covered by the decision of this Court in Commissioner of Income-tax, Bombay City II v. National Syndicate, (1961) 41 ITR 225 = (AIR 1961 SC 398 ) in which all the above conditions for the applicability of Section 10 (2) (vii) were held to be present. It was said that there was no other condition to be found in the section or in the Act which had to be complied with. There was nothing to show that the business of the assessee should have been carried on for the whole year or that the machinery or plant should have been used for the whole of the accounting period or if the assessee worked only for a part of the year and then sold out the loss that he incurred was not a business loss. The decisions which were relied upon by the High Court are hardly of much assistance in the matter and are distinguishable on facts. The first question should have been answered in favour of the assessee. 8. On the second question once it is accepted that the colliery- business was carried on for a part of the relevant assessment year the assessee would be entitled to get a set off under Section 24 (2) of the Act if the shares on account of which the dividends were received formed part of the assessees trading assets. It is well settled by the decisions of this Court (see C. I. T. Andhra Pradesh v. Cocanada Radhaswami Bank Ltd. (1965) 57 ITR 306 = (AIR 1966 SC 47 ) that Section 6 of the Act classifies the taxable income under the several heads but the scheme is that income tax is one tax and Section 6 only classifies the taxable income under different heads for the purpose of computation of the net income of the assessee. While sub-s. (1) of Section 24 provides for setting off the loss under one of the heads mentioned in Section 6 against the profits under a different head in the same year sub-s. (2) provides for the carrying forward of the loss for one year and setting off the same against the profits or gains of the assessee from the business in the subsequent year or years. It was emphasised in the aforesaid decision that sub-section (2) of Section 24 in contradistinction to sub-section (1) is concerned only with the business and not with its heads under Section 6 of the Act. Dividends are included in the meaning of income under sub-section (1-A) of Section 12 which is the residuary head. Applying the principles adverted to before the amount of dividends would form a part of the income from business of the assessee if the shares were a part of the assessees trading assets and the assessee would be entitled to a set off as claimed against the loss from its business incurred during the previous years. It does not appear to have been disputed at any stage that the shares formed part of the stock-in-trade of the share dealing business of the assessee. There could be no reason, therefore, for the amessee not being entitled to the set off claimed. The High Courts have consistently taken the view that business loss carried forward from earlier years can be set off against dividend income derived from shares held as Stock-in-trade(Vide Commissioner of Income-tax Madhya Pradesh v. Shrikishran Chandmal, (1966) 60 ITR 303 (Madh Pra) and Commissioner of Income-tax Ahmedabad v. Bhavnagar Trust Corporation (P) Ltd., (1968) 69 ITR 278 (Guj) . The second question, therefore, should have been answered in favour of the assessee. | 1[ds]5. On the first question the High Court was of the view that the sale was a closing down sale and the net result of the transaction was that the assessee was working the colliery from September 1, 1954 for and on account of the purchaser. While recognising that the coal business was not stopped as from September 1, 1954 the High Court came to the conclusion that it was on account of the purchaser that the business was carried on and any profits or losses which might have resulted until the actual sale were to be those of the purchaser and the vendor was to get only the price fixed together with interest. The first question was answered against the assessee. The second question was also answered against the assessee on the view that no colliery business in the relevant year was carried on by it and therefore no question of set off could arise. The third and the fourth questions were answered in accordance with the findings of fact given by the Tribunal and against the assessee. The fifth question was not pressed and was not answered. The sixth question was covered by the second question and therefore no answer was returned with regard to it as well6. In the present appeals we are concerned with the first and the second question. It has been submitted on behalf of the appellant that the loss of Rs. 11,257/- was allowable under S. 10 (2) (vii) of the Act in computing the total income of the appellant. The Tribunal had recorded a finding which was one of fact; that in the relevant accounting year the appellant did carry on the colliery business. The finding of the Tribunal had not been challenged by the department by raising an appropriate question and therefore it was not open to the High Court to go against the finding of the Tribunal and hold that the business was carried on for and on account of the purchaser. At any rate it was an undisputable fact that the appellant carried on the business upto November 29, 1954 and it was only by virtue of the agreement made on that day that it agreed to treat the business as having been transferred to the purchaser with effect from September 1, 1954. By means of the agreement it was not possible to alter the actual state of affairs, namely, the carrying on of the business by the appellant7. In our judgment there is a good deal of substance in the above contentions urged on behalf of the appellant. The Tribunal had, in clear and unequivocal terms, upheld the contention of the appellant that it had actually carried on the business till November 29,1954. Section 10 (2) (vii) provides that profits or gains shall be computed after making the allowance in respect of any such building, machinery or plant which had been sold etc. the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant is actually sold or its scrap value. The first proviso requires that such amount should actually be written off in the books of the assessee. It is difficult to see how all the conditions necessary for the allowance under the above provisions were not satisfied. The colliery business was carried on by the appellant during part of the relevant accounting year. The machinery and plant had been used for the purpose of the business. The sale of the colliery took place during the accounting year. The loss of Rupees 11, 257/- was written off in the books of the appellant. The present case appears to be covered by the decision of this Court in Commissioner of Income-tax, Bombay City II v. National Syndicate, (1961) 41 ITR 225 = (AIR 1961 SC 398 ) in which all the above conditions for the applicability of Section 10 (2) (vii) were held to be present. It was said that there was no other condition to be found in the section or in the Act which had to be complied with. There was nothing to show that the business of the assessee should have been carried on for the whole year or that the machinery or plant should have been used for the whole of the accounting period or if the assessee worked only for a part of the year and then sold out the loss that he incurred was not a business loss. The decisions which were relied upon by the High Court are hardly of much assistance in the matter and are distinguishable on facts. The first question should have been answered in favour of the assessee8. On the second question once it is accepted that the colliery- business was carried on for a part of the relevant assessment year the assessee would be entitled to get a set off under Section 24 (2) of the Act if the shares on account of which the dividends were received formed part of the assessees trading assets. It is well settled by the decisions of this Court (see C. I. T. Andhra Pradesh v. Cocanada Radhaswami Bank Ltd. (1965) 57 ITR 306 = (AIR 1966 SC 47 ) that Section 6 of the Act classifies the taxable income under the several heads but the scheme is that income tax is one tax and Section 6 only classifies the taxable income under different heads for the purpose of computation of the net income of the assessee. While sub-s. (1) of Section 24 provides for setting off the loss under one of the heads mentioned in Section 6 against the profits under a different head in the same year sub-s. (2) provides for the carrying forward of the loss for one year and setting off the same against the profits or gains of the assessee from the business in the subsequent year or years. It was emphasised in the aforesaid decision that sub-section (2) of Section 24 in contradistinction to sub-section (1) is concerned only with the business and not with its heads under Section 6 of the Act. Dividends are included in the meaning of income under sub-section (1-A) of Section 12 which is the residuary head. Applying the principles adverted to before the amount of dividends would form a part of the income from business of the assessee if the shares were a part of the assessees trading assets and the assessee would be entitled to a set off as claimed against the loss from its business incurred during the previous years. It does not appear to have been disputed at any stage that the shares formed part of the stock-in-trade of the share dealing business of the assessee. There could be no reason, therefore, for the amessee not being entitled to the set off claimed. The High Courts have consistently taken the view that business loss carried forward from earlier years can be set off against dividend income derived from shares held as Stock-in-trade(Vide Commissioner of Income-tax Madhya Pradesh v. Shrikishran Chandmal, (1966) 60 ITR 303 (Madh Pra) and Commissioner of Income-tax Ahmedabad v. Bhavnagar Trust Corporation (P) Ltd., (1968) 69 ITR 278 (Guj) . The second question, therefore, should have been answered in favour of the assessee. | 1 | 2,179 | 1,315 | ### 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:
the present appeals we are concerned with the first and the second question. It has been submitted on behalf of the appellant that the loss of Rs. 11,257/- was allowable under S. 10 (2) (vii) of the Act in computing the total income of the appellant. The Tribunal had recorded a finding which was one of fact; that in the relevant accounting year the appellant did carry on the colliery business. The finding of the Tribunal had not been challenged by the department by raising an appropriate question and therefore it was not open to the High Court to go against the finding of the Tribunal and hold that the business was carried on for and on account of the purchaser. At any rate it was an undisputable fact that the appellant carried on the business upto November 29, 1954 and it was only by virtue of the agreement made on that day that it agreed to treat the business as having been transferred to the purchaser with effect from September 1, 1954. By means of the agreement it was not possible to alter the actual state of affairs, namely, the carrying on of the business by the appellant. 7. In our judgment there is a good deal of substance in the above contentions urged on behalf of the appellant. The Tribunal had, in clear and unequivocal terms, upheld the contention of the appellant that it had actually carried on the business till November 29,1954. Section 10 (2) (vii) provides that profits or gains shall be computed after making the allowance in respect of any such building, machinery or plant which had been sold etc. the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant is actually sold or its scrap value. The first proviso requires that such amount should actually be written off in the books of the assessee. It is difficult to see how all the conditions necessary for the allowance under the above provisions were not satisfied. The colliery business was carried on by the appellant during part of the relevant accounting year. The machinery and plant had been used for the purpose of the business. The sale of the colliery took place during the accounting year. The loss of Rupees 11, 257/- was written off in the books of the appellant. The present case appears to be covered by the decision of this Court in Commissioner of Income-tax, Bombay City II v. National Syndicate, (1961) 41 ITR 225 = (AIR 1961 SC 398 ) in which all the above conditions for the applicability of Section 10 (2) (vii) were held to be present. It was said that there was no other condition to be found in the section or in the Act which had to be complied with. There was nothing to show that the business of the assessee should have been carried on for the whole year or that the machinery or plant should have been used for the whole of the accounting period or if the assessee worked only for a part of the year and then sold out the loss that he incurred was not a business loss. The decisions which were relied upon by the High Court are hardly of much assistance in the matter and are distinguishable on facts. The first question should have been answered in favour of the assessee. 8. On the second question once it is accepted that the colliery- business was carried on for a part of the relevant assessment year the assessee would be entitled to get a set off under Section 24 (2) of the Act if the shares on account of which the dividends were received formed part of the assessees trading assets. It is well settled by the decisions of this Court (see C. I. T. Andhra Pradesh v. Cocanada Radhaswami Bank Ltd. (1965) 57 ITR 306 = (AIR 1966 SC 47 ) that Section 6 of the Act classifies the taxable income under the several heads but the scheme is that income tax is one tax and Section 6 only classifies the taxable income under different heads for the purpose of computation of the net income of the assessee. While sub-s. (1) of Section 24 provides for setting off the loss under one of the heads mentioned in Section 6 against the profits under a different head in the same year sub-s. (2) provides for the carrying forward of the loss for one year and setting off the same against the profits or gains of the assessee from the business in the subsequent year or years. It was emphasised in the aforesaid decision that sub-section (2) of Section 24 in contradistinction to sub-section (1) is concerned only with the business and not with its heads under Section 6 of the Act. Dividends are included in the meaning of income under sub-section (1-A) of Section 12 which is the residuary head. Applying the principles adverted to before the amount of dividends would form a part of the income from business of the assessee if the shares were a part of the assessees trading assets and the assessee would be entitled to a set off as claimed against the loss from its business incurred during the previous years. It does not appear to have been disputed at any stage that the shares formed part of the stock-in-trade of the share dealing business of the assessee. There could be no reason, therefore, for the amessee not being entitled to the set off claimed. The High Courts have consistently taken the view that business loss carried forward from earlier years can be set off against dividend income derived from shares held as Stock-in-trade(Vide Commissioner of Income-tax Madhya Pradesh v. Shrikishran Chandmal, (1966) 60 ITR 303 (Madh Pra) and Commissioner of Income-tax Ahmedabad v. Bhavnagar Trust Corporation (P) Ltd., (1968) 69 ITR 278 (Guj) . The second question, therefore, should have been answered in favour of the assessee.
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concerned with the first and the second question. It has been submitted on behalf of the appellant that the loss of Rs. 11,257/- was allowable under S. 10 (2) (vii) of the Act in computing the total income of the appellant. The Tribunal had recorded a finding which was one of fact; that in the relevant accounting year the appellant did carry on the colliery business. The finding of the Tribunal had not been challenged by the department by raising an appropriate question and therefore it was not open to the High Court to go against the finding of the Tribunal and hold that the business was carried on for and on account of the purchaser. At any rate it was an undisputable fact that the appellant carried on the business upto November 29, 1954 and it was only by virtue of the agreement made on that day that it agreed to treat the business as having been transferred to the purchaser with effect from September 1, 1954. By means of the agreement it was not possible to alter the actual state of affairs, namely, the carrying on of the business by the appellant7. In our judgment there is a good deal of substance in the above contentions urged on behalf of the appellant. The Tribunal had, in clear and unequivocal terms, upheld the contention of the appellant that it had actually carried on the business till November 29,1954. Section 10 (2) (vii) provides that profits or gains shall be computed after making the allowance in respect of any such building, machinery or plant which had been sold etc. the amount by which the written down value thereof exceeds the amount for which the building, machinery or plant is actually sold or its scrap value. The first proviso requires that such amount should actually be written off in the books of the assessee. It is difficult to see how all the conditions necessary for the allowance under the above provisions were not satisfied. The colliery business was carried on by the appellant during part of the relevant accounting year. The machinery and plant had been used for the purpose of the business. The sale of the colliery took place during the accounting year. The loss of Rupees 11, 257/- was written off in the books of the appellant. The present case appears to be covered by the decision of this Court in Commissioner of Income-tax, Bombay City II v. National Syndicate, (1961) 41 ITR 225 = (AIR 1961 SC 398 ) in which all the above conditions for the applicability of Section 10 (2) (vii) were held to be present. It was said that there was no other condition to be found in the section or in the Act which had to be complied with. There was nothing to show that the business of the assessee should have been carried on for the whole year or that the machinery or plant should have been used for the whole of the accounting period or if the assessee worked only for a part of the year and then sold out the loss that he incurred was not a business loss. The decisions which were relied upon by the High Court are hardly of much assistance in the matter and are distinguishable on facts. The first question should have been answered in favour of the assessee8. On the second question once it is accepted that the colliery- business was carried on for a part of the relevant assessment year the assessee would be entitled to get a set off under Section 24 (2) of the Act if the shares on account of which the dividends were received formed part of the assessees trading assets. It is well settled by the decisions of this Court (see C. I. T. Andhra Pradesh v. Cocanada Radhaswami Bank Ltd. (1965) 57 ITR 306 = (AIR 1966 SC 47 ) that Section 6 of the Act classifies the taxable income under the several heads but the scheme is that income tax is one tax and Section 6 only classifies the taxable income under different heads for the purpose of computation of the net income of the assessee. While sub-s. (1) of Section 24 provides for setting off the loss under one of the heads mentioned in Section 6 against the profits under a different head in the same year sub-s. (2) provides for the carrying forward of the loss for one year and setting off the same against the profits or gains of the assessee from the business in the subsequent year or years. It was emphasised in the aforesaid decision that sub-section (2) of Section 24 in contradistinction to sub-section (1) is concerned only with the business and not with its heads under Section 6 of the Act. Dividends are included in the meaning of income under sub-section (1-A) of Section 12 which is the residuary head. Applying the principles adverted to before the amount of dividends would form a part of the income from business of the assessee if the shares were a part of the assessees trading assets and the assessee would be entitled to a set off as claimed against the loss from its business incurred during the previous years. It does not appear to have been disputed at any stage that the shares formed part of the stock-in-trade of the share dealing business of the assessee. There could be no reason, therefore, for the amessee not being entitled to the set off claimed. The High Courts have consistently taken the view that business loss carried forward from earlier years can be set off against dividend income derived from shares held as Stock-in-trade(Vide Commissioner of Income-tax Madhya Pradesh v. Shrikishran Chandmal, (1966) 60 ITR 303 (Madh Pra) and Commissioner of Income-tax Ahmedabad v. Bhavnagar Trust Corporation (P) Ltd., (1968) 69 ITR 278 (Guj) . The second question, therefore, should have been answered in favour of the assessee.
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Shetkari Sahakari Sakhar Karkhana Limited, Sangli, Maharashtra Vs. Collector of Sangli and Others | of the Central Act did not merely validate what the State authorities had al ready done under the Bombay Act but actually re-enacted the provisions of the Bombay Act by virtue of the authority vested in Parliament under Entry 97 in List I of the Seventh Schedule to the Constitution of India so that the Bombay Act became fully alive and operative as an enactment of Parliament as soon as the Central Act was promulgated and the authorities named in the Act were invested with full power to assess and recover the cess not under the Bombay Act but under the Central Act into which the provisions of the Bombay Act and the rules framed as well as the notifications issued thereunder became incorporated.11. The only other contention put forward by Mr. Sen (which was reiterated by Mr. Shanti Bhushan on behalf of the appellant in Civil Appeal No. 39 of 1969) was that the assessments having been made under statutory provisions which were invalid because of lack of legislative competence on the part of the Bombay Legislature, Parliament could not pass a law retrospectively validating those assessments by converting their character from assessments under the State statutes to those made under its own statute operating retrospectively. This contention also was repelled by this Court in Jaora Sugar Mills case (supra) with the following observations:"So, the crucial question is: if collections are made under statutory provisions which are invalid because they deal with a topic outside the legislative competence of the St ate legislatures, can Parliament, in exercise of its undoubted legislative competence, pass a law retrospectively validating the said collections by converting their character from collections made under the Stat e statutes to that of collections made under its own statute operating retrospectively ? In our opinion, the answer to this question has to be in the affirmative, because to hold otherwise would be to cut down the width and amplitude of the legislative competence conferred on Parliament by Art. 248 read with Entry 97 in List I of the Seventh Schedule. Whether or not retrospective operation of such a law is reasonable, may fall to be considered in certain cases; but that consideration has not been raised before us and in the circumstances of this case, it cannot validity be raised either. We must, therefore, hold that the High Court was right in rejecting the appellants case that the Act was invalid, and hence no demands could be made under its provisions either for a cess or for commission."With the greatest respect, we find no reason at all to differ.12. Article 265 of the Constitution of India was pressed into service by Mr. Shanti Bhushan in support of the proposition that no tax could be levied or collected except by authority of law. The proposition is unexceptionable but we fail to see in what manner Parliament lacked the authority of law while enacting the Central Act and incorporating into it the provisions of the Bombay Act. As pointed out above, Entry 97 in List I of the Seventh Schedule to the Constitution of India provide s full legislative competence to Parliament in relation to the Central Act inasmuch as it vests all residuary powers of legislation in Parliament. The contention based on alleged lack of authority of law in Parliament is therefore repelled.13. The submissions made by Mr. Patel appearing for the appellants in Civil Appeals No. 1925 and 1926 of 1972 alone now remain to be considered. He put forward two points. The first one was that section 4 of the Bombay Act was discriminatory, that the power conferred by it was unguided and uncanalised and that therefore it was hit by article 14 of the Constitution of India. When asked as to whether the point had been raised before the High Court, Mr. Patels answer was in the negative and it transpired that no foundation for the point had been laid even in the pleadings submitted to the High Court. It was therefore not allowed to be raised by us at this late stage.14. Mr. Patels second point was that in view of the proviso to clause (4) of section 2 of the Bombay Act, the managing agents of the factories in question would alone be liable and that the assessed cess could not be recovered from his clients who were owners of the concerned factories. The point is wholly without substance and that for two reasons. For one thing, no managing agent is involved in the two appeals in which Mr. Patel has put in appearance. Secondly, clause (4) of section 2 merely defines the term occupier and ha s nothing to say about the person on whom the cess is to be imposed or from whom it is to be recovered. There are no doubt other provisions in the Bombay Act [section 6, sub-section (1) of section 7 and section 8] which indicate that the authorities assessing or recovering the tax are primarily to deal with the occupier but those provisions have obviously been enacted as a matter of convenience both for the said authorities and the assessees so that an absent owner may not be unduly harassed nor proceedings delayed by reason of his absence and not for limiting to the occupier alone the liability to pay the cess. In fact sub- section (2) of section 7 which is in the following terms would indicate that the liability o f the owner of the concerned factory is not excluded:"7. (1)........................(2) If the occupier fails to furnish in due time the return referred to in section 6 or furnishes a return which in the opinion of the prescribed authority is incorrect or defective, the prescribed authority shall assess the amount payable by him in such manner as may be prescribed and the provisions of sub-section (1) shall apply as if such assessment has been made on the basis of a return furnished by the owner...."Both the submissions made by Mr. Patel are therefore repelled.15. | 0[ds]The contention is without force and in this connection we need do no more than refer to the language of clause (c) above extr acted which specifically authorizes both assessment and recovery of the cess after the commencement of the Central Act, and to two earlier decisions of this Court in which an identical argument was made andrespect, we also fully agree with the view expressed in Jaora Sugar Mills case (supra). It is thus plain that section 3 of the Central Act did not merely validate what the State authorities had al ready done under the Bombay Act but actually re-enacted the provisions of the Bombay Act by virtue of the authority vested in Parliament under Entry 97 in List I of the Seventh Schedule to the Constitution of India so that the Bombay Act became fully alive and operative as an enactment of Parliament as soon as the Central Act was promulgated and the authorities named in the Act were invested with full power to assess and recover the cess not under the Bombay Act but under the Central Act into which the provisions of the Bombay Act and the rules framed as well as the notifications issued thereunder becamecontention also was repelled by this Court in Jaora Sugar Mills case (supra) with the followingthe crucial question is: if collections are made under statutory provisions which are invalid because they deal with a topic outside the legislative competence of the St ate legislatures, can Parliament, in exercise of its undoubted legislative competence, pass a law retrospectively validating the said collections by converting their character from collections made under the Stat e statutes to that of collections made under its own statute operating retrospectively ? In our opinion, the answer to this question has to be in the affirmative, because to hold otherwise would be to cut down the width and amplitude of the legislative competence conferred on Parliament by Art. 248 read with Entry 97 in List I of the Seventh Schedule. Whether or not retrospective operation of such a law is reasonable, may fall to be considered in certain cases; but that consideration has not been raised before us and in the circumstances of this case, it cannot validity be raised either. We must, therefore, hold that the High Court was right in rejecting the appellants case that the Act was invalid, and hence no demands could be made under its provisions either for a cess or forthe greatest respect, we find no reason at all toproposition is unexceptionable but we fail to see in what manner Parliament lacked the authority of law while enacting the Central Act and incorporating into it the provisions of the Bombay Act. As pointed out above, Entry 97 in List I of the Seventh Schedule to the Constitution of India provide s full legislative competence to Parliament in relation to the Central Act inasmuch as it vests all residuary powers of legislation in Parliament. The contention based on alleged lack of authority of law in Parliament is therefore repelled.e submissions made by Mr. Patel appearing for the appellants in Civil Appeals No. 1925 and 1926 of 1972 alone now remain to be considered. He put forward two points. The first one was that section 4 of the Bombay Act was discriminatory, that the power conferred by it was unguided and uncanalised and that therefore it was hit by article 14 of the Constitution of India.When asked as to whether the point had been raised before the High Court, Mr. Patels answer was in the negative and it transpired that no foundation for the point had been laid even in the pleadings submitted to the High Court. It was therefore not allowed to be raised by us at this latepoint is wholly without substance and that for two reasons. For one thing, no managing agent is involved in the two appeals in which Mr. Patel has put in appearance. Secondly, clause (4) of section 2 merely defines the term occupier and ha s nothing to say about the person on whom the cess is to be imposed or from whom it is to be recovered. There are no doubt other provisions in the Bombay Act [section 6, sub-section (1) of section 7 and section 8] which indicate that the authorities assessing or recovering the tax are primarily to deal with the occupier but those provisions have obviously been enacted as a matter of convenience both for the said authorities and the assessees so that an absent owner may not be unduly harassed nor proceedings delayed by reason of his absence and not for limiting to the occupier alone the liability to pay thethe submissions made by Mr. Patel are therefore repelled. | 0 | 3,415 | 841 | ### Instruction:
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of the Central Act did not merely validate what the State authorities had al ready done under the Bombay Act but actually re-enacted the provisions of the Bombay Act by virtue of the authority vested in Parliament under Entry 97 in List I of the Seventh Schedule to the Constitution of India so that the Bombay Act became fully alive and operative as an enactment of Parliament as soon as the Central Act was promulgated and the authorities named in the Act were invested with full power to assess and recover the cess not under the Bombay Act but under the Central Act into which the provisions of the Bombay Act and the rules framed as well as the notifications issued thereunder became incorporated.11. The only other contention put forward by Mr. Sen (which was reiterated by Mr. Shanti Bhushan on behalf of the appellant in Civil Appeal No. 39 of 1969) was that the assessments having been made under statutory provisions which were invalid because of lack of legislative competence on the part of the Bombay Legislature, Parliament could not pass a law retrospectively validating those assessments by converting their character from assessments under the State statutes to those made under its own statute operating retrospectively. This contention also was repelled by this Court in Jaora Sugar Mills case (supra) with the following observations:"So, the crucial question is: if collections are made under statutory provisions which are invalid because they deal with a topic outside the legislative competence of the St ate legislatures, can Parliament, in exercise of its undoubted legislative competence, pass a law retrospectively validating the said collections by converting their character from collections made under the Stat e statutes to that of collections made under its own statute operating retrospectively ? In our opinion, the answer to this question has to be in the affirmative, because to hold otherwise would be to cut down the width and amplitude of the legislative competence conferred on Parliament by Art. 248 read with Entry 97 in List I of the Seventh Schedule. Whether or not retrospective operation of such a law is reasonable, may fall to be considered in certain cases; but that consideration has not been raised before us and in the circumstances of this case, it cannot validity be raised either. We must, therefore, hold that the High Court was right in rejecting the appellants case that the Act was invalid, and hence no demands could be made under its provisions either for a cess or for commission."With the greatest respect, we find no reason at all to differ.12. Article 265 of the Constitution of India was pressed into service by Mr. Shanti Bhushan in support of the proposition that no tax could be levied or collected except by authority of law. The proposition is unexceptionable but we fail to see in what manner Parliament lacked the authority of law while enacting the Central Act and incorporating into it the provisions of the Bombay Act. As pointed out above, Entry 97 in List I of the Seventh Schedule to the Constitution of India provide s full legislative competence to Parliament in relation to the Central Act inasmuch as it vests all residuary powers of legislation in Parliament. The contention based on alleged lack of authority of law in Parliament is therefore repelled.13. The submissions made by Mr. Patel appearing for the appellants in Civil Appeals No. 1925 and 1926 of 1972 alone now remain to be considered. He put forward two points. The first one was that section 4 of the Bombay Act was discriminatory, that the power conferred by it was unguided and uncanalised and that therefore it was hit by article 14 of the Constitution of India. When asked as to whether the point had been raised before the High Court, Mr. Patels answer was in the negative and it transpired that no foundation for the point had been laid even in the pleadings submitted to the High Court. It was therefore not allowed to be raised by us at this late stage.14. Mr. Patels second point was that in view of the proviso to clause (4) of section 2 of the Bombay Act, the managing agents of the factories in question would alone be liable and that the assessed cess could not be recovered from his clients who were owners of the concerned factories. The point is wholly without substance and that for two reasons. For one thing, no managing agent is involved in the two appeals in which Mr. Patel has put in appearance. Secondly, clause (4) of section 2 merely defines the term occupier and ha s nothing to say about the person on whom the cess is to be imposed or from whom it is to be recovered. There are no doubt other provisions in the Bombay Act [section 6, sub-section (1) of section 7 and section 8] which indicate that the authorities assessing or recovering the tax are primarily to deal with the occupier but those provisions have obviously been enacted as a matter of convenience both for the said authorities and the assessees so that an absent owner may not be unduly harassed nor proceedings delayed by reason of his absence and not for limiting to the occupier alone the liability to pay the cess. In fact sub- section (2) of section 7 which is in the following terms would indicate that the liability o f the owner of the concerned factory is not excluded:"7. (1)........................(2) If the occupier fails to furnish in due time the return referred to in section 6 or furnishes a return which in the opinion of the prescribed authority is incorrect or defective, the prescribed authority shall assess the amount payable by him in such manner as may be prescribed and the provisions of sub-section (1) shall apply as if such assessment has been made on the basis of a return furnished by the owner...."Both the submissions made by Mr. Patel are therefore repelled.15.
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The contention is without force and in this connection we need do no more than refer to the language of clause (c) above extr acted which specifically authorizes both assessment and recovery of the cess after the commencement of the Central Act, and to two earlier decisions of this Court in which an identical argument was made andrespect, we also fully agree with the view expressed in Jaora Sugar Mills case (supra). It is thus plain that section 3 of the Central Act did not merely validate what the State authorities had al ready done under the Bombay Act but actually re-enacted the provisions of the Bombay Act by virtue of the authority vested in Parliament under Entry 97 in List I of the Seventh Schedule to the Constitution of India so that the Bombay Act became fully alive and operative as an enactment of Parliament as soon as the Central Act was promulgated and the authorities named in the Act were invested with full power to assess and recover the cess not under the Bombay Act but under the Central Act into which the provisions of the Bombay Act and the rules framed as well as the notifications issued thereunder becamecontention also was repelled by this Court in Jaora Sugar Mills case (supra) with the followingthe crucial question is: if collections are made under statutory provisions which are invalid because they deal with a topic outside the legislative competence of the St ate legislatures, can Parliament, in exercise of its undoubted legislative competence, pass a law retrospectively validating the said collections by converting their character from collections made under the Stat e statutes to that of collections made under its own statute operating retrospectively ? In our opinion, the answer to this question has to be in the affirmative, because to hold otherwise would be to cut down the width and amplitude of the legislative competence conferred on Parliament by Art. 248 read with Entry 97 in List I of the Seventh Schedule. Whether or not retrospective operation of such a law is reasonable, may fall to be considered in certain cases; but that consideration has not been raised before us and in the circumstances of this case, it cannot validity be raised either. We must, therefore, hold that the High Court was right in rejecting the appellants case that the Act was invalid, and hence no demands could be made under its provisions either for a cess or forthe greatest respect, we find no reason at all toproposition is unexceptionable but we fail to see in what manner Parliament lacked the authority of law while enacting the Central Act and incorporating into it the provisions of the Bombay Act. As pointed out above, Entry 97 in List I of the Seventh Schedule to the Constitution of India provide s full legislative competence to Parliament in relation to the Central Act inasmuch as it vests all residuary powers of legislation in Parliament. The contention based on alleged lack of authority of law in Parliament is therefore repelled.e submissions made by Mr. Patel appearing for the appellants in Civil Appeals No. 1925 and 1926 of 1972 alone now remain to be considered. He put forward two points. The first one was that section 4 of the Bombay Act was discriminatory, that the power conferred by it was unguided and uncanalised and that therefore it was hit by article 14 of the Constitution of India.When asked as to whether the point had been raised before the High Court, Mr. Patels answer was in the negative and it transpired that no foundation for the point had been laid even in the pleadings submitted to the High Court. It was therefore not allowed to be raised by us at this latepoint is wholly without substance and that for two reasons. For one thing, no managing agent is involved in the two appeals in which Mr. Patel has put in appearance. Secondly, clause (4) of section 2 merely defines the term occupier and ha s nothing to say about the person on whom the cess is to be imposed or from whom it is to be recovered. There are no doubt other provisions in the Bombay Act [section 6, sub-section (1) of section 7 and section 8] which indicate that the authorities assessing or recovering the tax are primarily to deal with the occupier but those provisions have obviously been enacted as a matter of convenience both for the said authorities and the assessees so that an absent owner may not be unduly harassed nor proceedings delayed by reason of his absence and not for limiting to the occupier alone the liability to pay thethe submissions made by Mr. Patel are therefore repelled.
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Neti Sreeramulu Vs. State of Andhra Pradesh | the deceased. We do not find any reason to reduce the sentence passed by the lower court. We confirm the sentence."While confirming the capital sentence the High Court had quite clearly an obligation to itself consider what sentence should be imposed and not be content with the trial courts decision on the point unless some reason was shown for reducing that sentence. As observed in Jumman v. The State of Punjab, AIR 1957 SC 469 in such a case, "it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law abovementioned it is for the High Court to come to an independent conclusion of its own."7. No doubt, as observed by the High Court, there were as many as ten incised injuries on the deceased and injuries nos. l and 4 were considered by the medical evidence to be fatal. It is also clear that on the day of the incident nothing had happened to cause sudden provocation which should be grave enough to make the appellant lose his balance of mind. But in that case an argument would be open to take the offence out of the purview of Sections 300 and 302. I. P. C.That point does not appear to be open to the appellant because this appeal was not admitted on the merits and we are only required to consider whether on the conclusions of the High Court and on the assumption that the offence is one of murder, lesser penalty should be imposed in the present case. Apart from the question of what sentence should have been imposed by the trial court, in our opinion, it is open to this Court under Article 136 of the Constitution to see what sentence permissible under the law would meet the ends of justice now when we are called upon to consider that question. The appellant was, clearly on terms of improper intimacy with the deceased and was perhaps overcome by a sense of jealousy or indignation of what he thought was unfaithfulness on the part of the deceased. Assuming the trial court was justified in imposing the capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question of sentence by us, in our opinion, constitutes a relevant ground for reducing the sentence to life imprisonment. In the present case the appellant must have been in the condemned cell ever since October 30, 1971 when the sentence of death was imposed on him by the trial court. The High Court confirmed the sentence as far back as January 24, 1972. Since then the agonising consciousness and feeling of being under the sentence of death must have constantly haunted the appellant. No doubt, this delay has been caused because of the time taken by the High Court in disposing of the application for leave to appeal to this Court and because of the pendency of the application for special leave to appeal in this Court since October, 1972. But that cannot detract from the acute mental agony to which the appellant must have been subjected ever since the imposition of the capital sentence on him.8. We find that in July, l972 this Court issued notice to the respondent State to show cause why special leave should not be granted in regard to the sentence. The notice was apparently issued without any delay. But the matter was unfortunately not set down for hearing till 1-3-1973. This delay was perhaps due to the fact that the respondent-State did not put in appearance. Indeed, the State was not represented at the hearing either of the special leave petition or of the appeal before us. Now the importance of speedy disposal of cases involving sentence of death has been recognised by this Court, for, in R. 21 (2) of O. XXI, it is expressly provided that fin such cases the printed record shall be made ready and despatched to this Court within a period of 60 days after the receipt of intimation from the registry of this Court of the filing of the petition of appeal or of the order granting special leave to appeal. The same anxiety and concern for speedy disposal of special leave petitions in such cases is equally desirable. It appears that the importance of speedy hearing of the petition for special leave was not realised in this case. In our view, the neglect or unwillingness of the State to enter appearance should not have prevented the posting of the special leave petition for hearing with the greatest possible dispatch.9. On the facts and circumstances of this case we feel that the interests of justice require that the sentence of death should be reduced to that of life imprisonment and we so order. The fact that the State of Andhra Pradesh has not cared to enter appearance in spite of notice suggests that in the opinion of the legal advisors of the State there was no good cause to show against the reduction of sentence. In Piare Dusadh v. Emperor, AIR 1944 FC 1 the sentence of death was reduced to one of transportation for life when the convict had inter alia been awaiting execution of death sentence for over a year:The Federal Court there observed:"In committing the offence the appellant must have been actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind. He has besides been awaiting the execution of his death sentence for over a year. We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death. "These observations are equally pertinent to the case in hand. | 1[ds]7. No doubt, as observed by the High Court, there were as many as ten incised injuries on the deceased and injuries nos. l and 4 were considered by the medical evidence to be fatal. It is also clear that on the day of the incident nothing had happened to cause sudden provocation which should be grave enough to make the appellant lose his balance of mind. But in that case an argument would be open to take the offence out of the purview of Sections 300 and 302. I. P. C.We find that in July, l972 this Court issued notice to the respondent State to show cause why special leave should not be granted in regard to the sentence. The notice was apparently issued without any delay. But the matter was unfortunately not set down for hearing till 1-3-1973. This delay was perhaps due to the fact that the respondent-State did not put in appearance. Indeed, the State was not represented at the hearing either of the special leave petition or of the appeal before us. Now the importance of speedy disposal of cases involving sentence of death has been recognised by this Court, for, in R. 21 (2) of O. XXI, it is expressly provided that fin such cases the printed record shall be made ready and despatched to this Court within a period of 60 days after the receipt of intimation from the registry of this Court of the filing of the petition of appeal or of the order granting special leave to appeal. The same anxiety and concern for speedy disposal of special leave petitions in such cases is equally desirable. It appears that the importance of speedy hearing of the petition for special leave was not realised in this case. In our view, the neglect or unwillingness of the State to enter appearance should not have prevented the posting of the special leave petition for hearing with the greatest possible dispatch.9. On the facts and circumstances of this case we feel that the interests of justice require that the sentence of death should be reduced to that of life imprisonment and we so order. The fact that the State of Andhra Pradesh has not cared to enter appearance in spite of notice suggests that in the opinion of the legal advisors of the State there was no good cause to show against the reduction of | 1 | 2,251 | 429 | ### Instruction:
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the deceased. We do not find any reason to reduce the sentence passed by the lower court. We confirm the sentence."While confirming the capital sentence the High Court had quite clearly an obligation to itself consider what sentence should be imposed and not be content with the trial courts decision on the point unless some reason was shown for reducing that sentence. As observed in Jumman v. The State of Punjab, AIR 1957 SC 469 in such a case, "it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law abovementioned it is for the High Court to come to an independent conclusion of its own."7. No doubt, as observed by the High Court, there were as many as ten incised injuries on the deceased and injuries nos. l and 4 were considered by the medical evidence to be fatal. It is also clear that on the day of the incident nothing had happened to cause sudden provocation which should be grave enough to make the appellant lose his balance of mind. But in that case an argument would be open to take the offence out of the purview of Sections 300 and 302. I. P. C.That point does not appear to be open to the appellant because this appeal was not admitted on the merits and we are only required to consider whether on the conclusions of the High Court and on the assumption that the offence is one of murder, lesser penalty should be imposed in the present case. Apart from the question of what sentence should have been imposed by the trial court, in our opinion, it is open to this Court under Article 136 of the Constitution to see what sentence permissible under the law would meet the ends of justice now when we are called upon to consider that question. The appellant was, clearly on terms of improper intimacy with the deceased and was perhaps overcome by a sense of jealousy or indignation of what he thought was unfaithfulness on the part of the deceased. Assuming the trial court was justified in imposing the capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question of sentence by us, in our opinion, constitutes a relevant ground for reducing the sentence to life imprisonment. In the present case the appellant must have been in the condemned cell ever since October 30, 1971 when the sentence of death was imposed on him by the trial court. The High Court confirmed the sentence as far back as January 24, 1972. Since then the agonising consciousness and feeling of being under the sentence of death must have constantly haunted the appellant. No doubt, this delay has been caused because of the time taken by the High Court in disposing of the application for leave to appeal to this Court and because of the pendency of the application for special leave to appeal in this Court since October, 1972. But that cannot detract from the acute mental agony to which the appellant must have been subjected ever since the imposition of the capital sentence on him.8. We find that in July, l972 this Court issued notice to the respondent State to show cause why special leave should not be granted in regard to the sentence. The notice was apparently issued without any delay. But the matter was unfortunately not set down for hearing till 1-3-1973. This delay was perhaps due to the fact that the respondent-State did not put in appearance. Indeed, the State was not represented at the hearing either of the special leave petition or of the appeal before us. Now the importance of speedy disposal of cases involving sentence of death has been recognised by this Court, for, in R. 21 (2) of O. XXI, it is expressly provided that fin such cases the printed record shall be made ready and despatched to this Court within a period of 60 days after the receipt of intimation from the registry of this Court of the filing of the petition of appeal or of the order granting special leave to appeal. The same anxiety and concern for speedy disposal of special leave petitions in such cases is equally desirable. It appears that the importance of speedy hearing of the petition for special leave was not realised in this case. In our view, the neglect or unwillingness of the State to enter appearance should not have prevented the posting of the special leave petition for hearing with the greatest possible dispatch.9. On the facts and circumstances of this case we feel that the interests of justice require that the sentence of death should be reduced to that of life imprisonment and we so order. The fact that the State of Andhra Pradesh has not cared to enter appearance in spite of notice suggests that in the opinion of the legal advisors of the State there was no good cause to show against the reduction of sentence. In Piare Dusadh v. Emperor, AIR 1944 FC 1 the sentence of death was reduced to one of transportation for life when the convict had inter alia been awaiting execution of death sentence for over a year:The Federal Court there observed:"In committing the offence the appellant must have been actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind. He has besides been awaiting the execution of his death sentence for over a year. We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death. "These observations are equally pertinent to the case in hand.
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7. No doubt, as observed by the High Court, there were as many as ten incised injuries on the deceased and injuries nos. l and 4 were considered by the medical evidence to be fatal. It is also clear that on the day of the incident nothing had happened to cause sudden provocation which should be grave enough to make the appellant lose his balance of mind. But in that case an argument would be open to take the offence out of the purview of Sections 300 and 302. I. P. C.We find that in July, l972 this Court issued notice to the respondent State to show cause why special leave should not be granted in regard to the sentence. The notice was apparently issued without any delay. But the matter was unfortunately not set down for hearing till 1-3-1973. This delay was perhaps due to the fact that the respondent-State did not put in appearance. Indeed, the State was not represented at the hearing either of the special leave petition or of the appeal before us. Now the importance of speedy disposal of cases involving sentence of death has been recognised by this Court, for, in R. 21 (2) of O. XXI, it is expressly provided that fin such cases the printed record shall be made ready and despatched to this Court within a period of 60 days after the receipt of intimation from the registry of this Court of the filing of the petition of appeal or of the order granting special leave to appeal. The same anxiety and concern for speedy disposal of special leave petitions in such cases is equally desirable. It appears that the importance of speedy hearing of the petition for special leave was not realised in this case. In our view, the neglect or unwillingness of the State to enter appearance should not have prevented the posting of the special leave petition for hearing with the greatest possible dispatch.9. On the facts and circumstances of this case we feel that the interests of justice require that the sentence of death should be reduced to that of life imprisonment and we so order. The fact that the State of Andhra Pradesh has not cared to enter appearance in spite of notice suggests that in the opinion of the legal advisors of the State there was no good cause to show against the reduction of
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GENPACT INDIA PRIVATE LIMITED Vs. DEPUTY COMMISSIONER OF INCOME TAX | GKN Driveshafts (India) Ltd. v. ITO (2003) 1 SCC 72 ] … 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case AIR 1964 SC 1419 , Titaghur Paper Mills case 4 and other similar judgments that 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 still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. Recently, in Authorised Officer, State Bank of Travancore & Anr. v. Mathew K.C. (2018) 3 SCC 85 , the principles laid down in Chhabil Dass Agarwal 2 were reiterated as under: The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal 2 … 16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in Section 115QA were initially confined only to those covered by Section 77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was still at large. In State of U.P . v. U.P . Rajya Khanij Vikas Nigam Sangharsh Samiti and others (2008) 12 SCC 675 this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under: 38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari AIR 1992 All 331 (Suresh Chandra Tewari vs. District Supply Officer) that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that petition cannot be rejected on the ground of availability of alternative remedy of filing appeal . But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) 2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed. (emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner. 17. We do not, therefore, find any error in the approach of and conclusion arrived at by the High Court. It is relevant to mention that the concessions given on behalf of the Revenue as recorded in the directions issued by the High Court also take care of matters of prejudice, if any. Consequently, the appellant, as a matter of fact, will have a fuller, adequate and efficacious remedy by way of appeal before the appellate authority. 18. Certain issues raised during the course of hearing touching upon the aspects whether the appellant is liable under Section 115QA of the Act or whether the transaction of buy back of shares in the present matter would come within the statutory contours of said Section 115QA or not, are issues which will be gone into at the appropriate stages by the concerned authorities; and as such we have refrained from dealing with those issues. | 0[ds]There is no reason why the scope of the such expression be restricted and confined to issues arising out of or touching upon assessment proceedings either under Section 143 or Section 144 of the Act13. If the submission of the appellant is accepted and the concerned expression as stated hereinabove in Section 246(1)(a) or in Section 246A(1)(a) is to be considered as relatable to the liability of an assessee to be assessed under Section 143(3) as contended, there would be no appellate remedy in case of any determination under Section 115QA. The issues may arise not just confined to the question whether the company is liable at all but may also relate to other facets including the extent of liability and also with regard to computation. If the submission is accepted, every time the dispute will be required to be taken up in proceedings such as a petition under Article 226 of the Constitution, which normally would not be entertained in case of any disputed questions of fact or concerning factual aspects of the matter. The assessee may thus, not only lose a remedy of having the matter considered on factual facets of the matter but would also stand deprived of regular channels of challenges available to it under the hierarchy of fora available under the Act14. We, therefore, reject the submissions advanced by the appellant and hold that an appeal would be maintainable against the determination of liability under Section 115QA of the Act16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in Section 115QA were initially confined only to those covered by Section 77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was still at large17. We do not, therefore, find any error in the approach of and conclusion arrived at by the High Court. It is relevant to mention that the concessions given on behalf of the Revenue as recorded in the directions issued by the High Court also take care of matters of prejudice, if any. Consequently, the appellant, as a matter of fact, will have a fuller, adequate and efficacious remedy by way of appeal before the appellate authority18. Certain issues raised during the course of hearing touching upon the aspects whether the appellant is liable under Section 115QA of the Act or whether the transaction of buy back of shares in the present matter would come within the statutory contours of said Section 115QA or not, are issues which will be gone into at the appropriate stages by the concerned authorities; and as such we have refrained from dealing with those issues. | 0 | 8,006 | 589 | ### Instruction:
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GKN Driveshafts (India) Ltd. v. ITO (2003) 1 SCC 72 ] … 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case AIR 1964 SC 1419 , Titaghur Paper Mills case 4 and other similar judgments that 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 still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. Recently, in Authorised Officer, State Bank of Travancore & Anr. v. Mathew K.C. (2018) 3 SCC 85 , the principles laid down in Chhabil Dass Agarwal 2 were reiterated as under: The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal 2 … 16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in Section 115QA were initially confined only to those covered by Section 77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was still at large. In State of U.P . v. U.P . Rajya Khanij Vikas Nigam Sangharsh Samiti and others (2008) 12 SCC 675 this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under: 38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari AIR 1992 All 331 (Suresh Chandra Tewari vs. District Supply Officer) that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that petition cannot be rejected on the ground of availability of alternative remedy of filing appeal . But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) 2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed. (emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner. 17. We do not, therefore, find any error in the approach of and conclusion arrived at by the High Court. It is relevant to mention that the concessions given on behalf of the Revenue as recorded in the directions issued by the High Court also take care of matters of prejudice, if any. Consequently, the appellant, as a matter of fact, will have a fuller, adequate and efficacious remedy by way of appeal before the appellate authority. 18. Certain issues raised during the course of hearing touching upon the aspects whether the appellant is liable under Section 115QA of the Act or whether the transaction of buy back of shares in the present matter would come within the statutory contours of said Section 115QA or not, are issues which will be gone into at the appropriate stages by the concerned authorities; and as such we have refrained from dealing with those issues.
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There is no reason why the scope of the such expression be restricted and confined to issues arising out of or touching upon assessment proceedings either under Section 143 or Section 144 of the Act13. If the submission of the appellant is accepted and the concerned expression as stated hereinabove in Section 246(1)(a) or in Section 246A(1)(a) is to be considered as relatable to the liability of an assessee to be assessed under Section 143(3) as contended, there would be no appellate remedy in case of any determination under Section 115QA. The issues may arise not just confined to the question whether the company is liable at all but may also relate to other facets including the extent of liability and also with regard to computation. If the submission is accepted, every time the dispute will be required to be taken up in proceedings such as a petition under Article 226 of the Constitution, which normally would not be entertained in case of any disputed questions of fact or concerning factual aspects of the matter. The assessee may thus, not only lose a remedy of having the matter considered on factual facets of the matter but would also stand deprived of regular channels of challenges available to it under the hierarchy of fora available under the Act14. We, therefore, reject the submissions advanced by the appellant and hold that an appeal would be maintainable against the determination of liability under Section 115QA of the Act16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in Section 115QA were initially confined only to those covered by Section 77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was still at large17. We do not, therefore, find any error in the approach of and conclusion arrived at by the High Court. It is relevant to mention that the concessions given on behalf of the Revenue as recorded in the directions issued by the High Court also take care of matters of prejudice, if any. Consequently, the appellant, as a matter of fact, will have a fuller, adequate and efficacious remedy by way of appeal before the appellate authority18. Certain issues raised during the course of hearing touching upon the aspects whether the appellant is liable under Section 115QA of the Act or whether the transaction of buy back of shares in the present matter would come within the statutory contours of said Section 115QA or not, are issues which will be gone into at the appropriate stages by the concerned authorities; and as such we have refrained from dealing with those issues.
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Amir Singh And Another Vs. Ram Singh And Others(And Connected Appeals) | the unamended section must operate retrospectively. He, therefore, suggests that the respondents ought to be given an opportunity to prove their case under the fourth clause of s. 15(c) as amended. In this connection, he has referred us to the fact that this plea has been specifically taken by the respondents in their statement of the case before this Court. It is on this plea that the question about the effect of the retrospective operation of s. 31 arises.Mr. Achhru Ram contends that though s. 31 is retrospective and in that sense the rights to preempt which vested in the respondents at the time when they instituted the present suits have been retrospectively taken away from them, it cannot be said that the right to preempt to which the respondents lay claim in the present appeals has been retrospectively created. His argument is that by the amending Act, the Legislature has no doubt provided that certain classes of persons who were entitled to preempt under the old Act should not be given that right and the extinction of the said right should operate retrospectively, but that cannot be said to be the policy of the legislature in regard to the rights which have been created for the first time by the amending Act.4. The argument thus presented may prima facie appear to be attractive; but a close examination of the words used in s. 31 shows that it is not well founded. Section 31, in substance, requires the appellate Court to pass a decree in a preemption matter which is not inconsistent with the provisions of the amending Act. In the present appeals, if we were to uphold the respondents right to claim preemption on the strength of the provisions of s. 15(c) as they stood prior to the amendment, that would be inconsistent with the provisions of the amending Act, and so, the change made by the amending Act has to be given effect to and the right which once vested in the respondents must be deemed to have been retrospectively taken away from them. On this point there is no dispute. Would it make any difference in the legal position when we are dealing with rights which are created for the first time by the amending Act on the date when this Court will pass a decree in the present appeals? If the rights created in favour of the tenants are not recognised and a decree is passed ignoring the said rights, that decree would be inconsistent with the relevant provisions of the amending Act, and s. 31 has clearly enjoined that no Court shall pass a decree which is inconsistent with the provisions of the amending Act. The position, therefore, appears to be clear that when a decree is passed in a preemption matter pending before the appellate Court, that Court must refuse to recognise the right to preempt which was recognised by the unamended Act but has been dropped by the amending Act just as much as it must recognise rights which were not recognised by the unamended Act but have been created by the amending Act. The retrospective operation of s.31 necessarily involves effect being given to the substantive provisions of s. 15 retrospectively and that will apply as much to the extinction of the old rights as to the creation of new ones. The retrospective operation of s. 15 which is consequential on the retrospective operation of s.31 is not affected by the fact that the right of preemption prescribed by s. 15 if; referred to as a right which shall vest in the persons specified in subsections (a), (b) and (c) of s. 15(1).It is, however, urged that the law of preemption requires that the preemptor must possess the right to preempt at the date of the sale, at the date of the suit and at the date of the decree. This position cannot be disputed. But when it is suggested that the respondents cannot claim that they had the right when they brought the present suit or when the sales were effected, the argument ignores the true effect of the retrospective operation of s. 31 and s. 15. If the inevitable consequence of the retrospective operation of s.31 is to make the substantive provisions of s. 15 also retrospective, it follows that by fiction introduced by the retrospective operation, the rights which the respondents claim under the amended provisions of s. 15 must be deemed to have vested in them at the relevant time. If the relevant provisions are made retrospective by the legislature, the retrospective operation must be given full effect to, and that meets the argument that the right to preempt did not exist in the respondents at the time when the sale transactions in question took place. Therefore, we are satisfied that the respondents are entitled to claim that they should be given an opportunity to prove their case that as tenants of the lands in suit they have a right to claim preemption. Incidentally, when the respondents filed the present suits, they had a right to preempt under the relevant provisions of the Act as they stood at that time; by the amendment, that right has been taken away, but instead they claim another right by virtue of their status as tenants of the lands, and this right is, by the retrospective operation of s. 31, available to them. We must accordingly set aside the decrees passed by the High Court and send the matters back to the trial Court with a direction that it should allow the respondents an opportunity to amend their claims by putting forth their right to ask for preemption as tenants under the amended provision of 8. 15. After the amendments are thus made, the appellants should be given an opportunity to file their written statements and then appropriate issues should be framed and the suits tried and disposed of in the light of the findings on those issues in accordance with law. | 1[ds]We have already noticed that some persons whose right to preempt was recognised by the corresponding provisions of the parent Act, have been omitted by the amended section. The amended section has also introduced another class of persons on whom the right to claim pre- emption has been conferred. These persons are the tenants who hold under tenancy of the vendors the land or property sold or a part thereof. This class of tenants has been introduced in clauses (a), (b) and (c) of amended s. 15. Clause four of s. 15(1) (c) provides that the right of pre- emption in respect of agricultural land and village immovable property shall vest in the tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof. Similar provisions are made in clauses (a) &- (b) of the saidthe present appeals, if we were to uphold the respondents right to claim preemption on the strength of the provisions of s. 15(c) as they stood prior to the amendment, that would be inconsistent with the provisions of the amending Act, and so, the change made by the amending Act has to be given effect to and the right which once vested in the respondents must be deemed to have been retrospectively taken away from them. On this point there is no dispute. Would it make any difference in the legal position when we are dealing with rights which are created for the first time by the amending Act on the date when this Court will pass a decree in the present appeals? If the rights created in favour of the tenants are not recognised and a decree is passed ignoring the said rights, that decree would be inconsistent with the relevant provisions of the amending Act, and s. 31 has clearly enjoined that no Court shall pass a decree which is inconsistent with the provisions of the amending Act. The position, therefore, appears to be clear that when a decree is passed in a preemption matter pending before the appellate Court, that Court must refuse to recognise the right to preempt which was recognised by the unamended Act but has been dropped by the amending Act just as much as it must recognise rights which were not recognised by the unamended Act but have been created by the amending Act. The retrospective operation of s.31 necessarily involves effect being given to the substantive provisions of s. 15 retrospectively and that will apply as much to the extinction of the old rights as to the creation of new ones. The retrospective operation of s. 15 which is consequential on the retrospective operation of s.31 is not affected by the fact that the right of preemption prescribed by s. 15 if; referred to as a right which shall vest in the persons specified in subsections (a), (b) and (c) of s. 15(1).It is, however, urged that the law of preemption requires that the preemptor must possess the right to preempt at the date of the sale, at the date of the suit and at the date of the decree. This position cannot be disputed. But when it is suggested that the respondents cannot claim that they had the right when they brought the present suit or when the sales were effected, the argument ignores the true effect of the retrospective operation of s. 31 and s. 15. If the inevitable consequence of the retrospective operation of s.31 is to make the substantive provisions of s. 15 also retrospective, it follows that by fiction introduced by the retrospective operation, the rights which the respondents claim under the amended provisions of s. 15 must be deemed to have vested in them at the relevant time. If the relevant provisions are made retrospective by the legislature, the retrospective operation must be given full effect to, and that meets the argument that the right to preempt did not exist in the respondents at the time when the sale transactions in question took place. Therefore, we are satisfied that the respondents are entitled to claim that they should be given an opportunity to prove their case that as tenants of the lands in suit they have a right to claim preemption. Incidentally, when the respondents filed the present suits, they had a right to preempt under the relevant provisions of the Act as they stood at that time; by the amendment, that right has been taken away, but instead they claim another right by virtue of their status as tenants of the lands, and this right is, by the retrospective operation of s. 31, available to them. We must accordingly set aside the decrees passed by the High Court and send the matters back to the trial Court with a direction that it should allow the respondents an opportunity to amend their claims by putting forth their right to ask for preemption as tenants under the amended provision of 8. 15. After the amendments are thus made, the appellants should be given an opportunity to file their written statements and then appropriate issues should be framed and the suits tried and disposed of in the light of the findings on those issues in accordance with law. | 1 | 2,490 | 963 | ### Instruction:
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the unamended section must operate retrospectively. He, therefore, suggests that the respondents ought to be given an opportunity to prove their case under the fourth clause of s. 15(c) as amended. In this connection, he has referred us to the fact that this plea has been specifically taken by the respondents in their statement of the case before this Court. It is on this plea that the question about the effect of the retrospective operation of s. 31 arises.Mr. Achhru Ram contends that though s. 31 is retrospective and in that sense the rights to preempt which vested in the respondents at the time when they instituted the present suits have been retrospectively taken away from them, it cannot be said that the right to preempt to which the respondents lay claim in the present appeals has been retrospectively created. His argument is that by the amending Act, the Legislature has no doubt provided that certain classes of persons who were entitled to preempt under the old Act should not be given that right and the extinction of the said right should operate retrospectively, but that cannot be said to be the policy of the legislature in regard to the rights which have been created for the first time by the amending Act.4. The argument thus presented may prima facie appear to be attractive; but a close examination of the words used in s. 31 shows that it is not well founded. Section 31, in substance, requires the appellate Court to pass a decree in a preemption matter which is not inconsistent with the provisions of the amending Act. In the present appeals, if we were to uphold the respondents right to claim preemption on the strength of the provisions of s. 15(c) as they stood prior to the amendment, that would be inconsistent with the provisions of the amending Act, and so, the change made by the amending Act has to be given effect to and the right which once vested in the respondents must be deemed to have been retrospectively taken away from them. On this point there is no dispute. Would it make any difference in the legal position when we are dealing with rights which are created for the first time by the amending Act on the date when this Court will pass a decree in the present appeals? If the rights created in favour of the tenants are not recognised and a decree is passed ignoring the said rights, that decree would be inconsistent with the relevant provisions of the amending Act, and s. 31 has clearly enjoined that no Court shall pass a decree which is inconsistent with the provisions of the amending Act. The position, therefore, appears to be clear that when a decree is passed in a preemption matter pending before the appellate Court, that Court must refuse to recognise the right to preempt which was recognised by the unamended Act but has been dropped by the amending Act just as much as it must recognise rights which were not recognised by the unamended Act but have been created by the amending Act. The retrospective operation of s.31 necessarily involves effect being given to the substantive provisions of s. 15 retrospectively and that will apply as much to the extinction of the old rights as to the creation of new ones. The retrospective operation of s. 15 which is consequential on the retrospective operation of s.31 is not affected by the fact that the right of preemption prescribed by s. 15 if; referred to as a right which shall vest in the persons specified in subsections (a), (b) and (c) of s. 15(1).It is, however, urged that the law of preemption requires that the preemptor must possess the right to preempt at the date of the sale, at the date of the suit and at the date of the decree. This position cannot be disputed. But when it is suggested that the respondents cannot claim that they had the right when they brought the present suit or when the sales were effected, the argument ignores the true effect of the retrospective operation of s. 31 and s. 15. If the inevitable consequence of the retrospective operation of s.31 is to make the substantive provisions of s. 15 also retrospective, it follows that by fiction introduced by the retrospective operation, the rights which the respondents claim under the amended provisions of s. 15 must be deemed to have vested in them at the relevant time. If the relevant provisions are made retrospective by the legislature, the retrospective operation must be given full effect to, and that meets the argument that the right to preempt did not exist in the respondents at the time when the sale transactions in question took place. Therefore, we are satisfied that the respondents are entitled to claim that they should be given an opportunity to prove their case that as tenants of the lands in suit they have a right to claim preemption. Incidentally, when the respondents filed the present suits, they had a right to preempt under the relevant provisions of the Act as they stood at that time; by the amendment, that right has been taken away, but instead they claim another right by virtue of their status as tenants of the lands, and this right is, by the retrospective operation of s. 31, available to them. We must accordingly set aside the decrees passed by the High Court and send the matters back to the trial Court with a direction that it should allow the respondents an opportunity to amend their claims by putting forth their right to ask for preemption as tenants under the amended provision of 8. 15. After the amendments are thus made, the appellants should be given an opportunity to file their written statements and then appropriate issues should be framed and the suits tried and disposed of in the light of the findings on those issues in accordance with law.
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### Explanation:
We have already noticed that some persons whose right to preempt was recognised by the corresponding provisions of the parent Act, have been omitted by the amended section. The amended section has also introduced another class of persons on whom the right to claim pre- emption has been conferred. These persons are the tenants who hold under tenancy of the vendors the land or property sold or a part thereof. This class of tenants has been introduced in clauses (a), (b) and (c) of amended s. 15. Clause four of s. 15(1) (c) provides that the right of pre- emption in respect of agricultural land and village immovable property shall vest in the tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof. Similar provisions are made in clauses (a) &- (b) of the saidthe present appeals, if we were to uphold the respondents right to claim preemption on the strength of the provisions of s. 15(c) as they stood prior to the amendment, that would be inconsistent with the provisions of the amending Act, and so, the change made by the amending Act has to be given effect to and the right which once vested in the respondents must be deemed to have been retrospectively taken away from them. On this point there is no dispute. Would it make any difference in the legal position when we are dealing with rights which are created for the first time by the amending Act on the date when this Court will pass a decree in the present appeals? If the rights created in favour of the tenants are not recognised and a decree is passed ignoring the said rights, that decree would be inconsistent with the relevant provisions of the amending Act, and s. 31 has clearly enjoined that no Court shall pass a decree which is inconsistent with the provisions of the amending Act. The position, therefore, appears to be clear that when a decree is passed in a preemption matter pending before the appellate Court, that Court must refuse to recognise the right to preempt which was recognised by the unamended Act but has been dropped by the amending Act just as much as it must recognise rights which were not recognised by the unamended Act but have been created by the amending Act. The retrospective operation of s.31 necessarily involves effect being given to the substantive provisions of s. 15 retrospectively and that will apply as much to the extinction of the old rights as to the creation of new ones. The retrospective operation of s. 15 which is consequential on the retrospective operation of s.31 is not affected by the fact that the right of preemption prescribed by s. 15 if; referred to as a right which shall vest in the persons specified in subsections (a), (b) and (c) of s. 15(1).It is, however, urged that the law of preemption requires that the preemptor must possess the right to preempt at the date of the sale, at the date of the suit and at the date of the decree. This position cannot be disputed. But when it is suggested that the respondents cannot claim that they had the right when they brought the present suit or when the sales were effected, the argument ignores the true effect of the retrospective operation of s. 31 and s. 15. If the inevitable consequence of the retrospective operation of s.31 is to make the substantive provisions of s. 15 also retrospective, it follows that by fiction introduced by the retrospective operation, the rights which the respondents claim under the amended provisions of s. 15 must be deemed to have vested in them at the relevant time. If the relevant provisions are made retrospective by the legislature, the retrospective operation must be given full effect to, and that meets the argument that the right to preempt did not exist in the respondents at the time when the sale transactions in question took place. Therefore, we are satisfied that the respondents are entitled to claim that they should be given an opportunity to prove their case that as tenants of the lands in suit they have a right to claim preemption. Incidentally, when the respondents filed the present suits, they had a right to preempt under the relevant provisions of the Act as they stood at that time; by the amendment, that right has been taken away, but instead they claim another right by virtue of their status as tenants of the lands, and this right is, by the retrospective operation of s. 31, available to them. We must accordingly set aside the decrees passed by the High Court and send the matters back to the trial Court with a direction that it should allow the respondents an opportunity to amend their claims by putting forth their right to ask for preemption as tenants under the amended provision of 8. 15. After the amendments are thus made, the appellants should be given an opportunity to file their written statements and then appropriate issues should be framed and the suits tried and disposed of in the light of the findings on those issues in accordance with law.
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Ratilal Panachand Gandhi & Others Vs. State of Bombay & Others | collections are all merged in the general revenue of the State to be applied for general public purposes. Tax is a common burden and the only return which the tax-payer gets is participation in the common benefits of the State. Fees, on the other hand, are payments primarily in the public interest, but for some special service rendered or some special work done for the benefit of those from whom the payments are demanded. Thus id fees there is always an element of quid pro quo; which is absent in a tax. It may not be possible to prove in every case that the fees that are collected by the Government approximate to the expenses that are incurred by it in rendering any particular kind of services or in performing any particular work for the benefit of certain individuals. But in order that the collections made by the Government can rank as fees, there must be correlation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services. This can be proved by showing that on the face of the legislative provision itself, the collections are not merged in the general revenue but are set apart and appropriated for rendering these services.23. Thus two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly and in the second place, the amount collected must be car-marked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes. As has been pointed out in the Madras case mentioned above, too much stress should not be laid on the presence or absences of what has been called the coercive element. It is not correct to say that as distinguished from taxation which is compulsory payment, the payment of fees is always voluntary, it being a matter of choice with individuals either to accept the service or not for which fees are to be paid. We may cite for example the case of a licence fee for a motor car. It is argued that this would be a fee and not a tax, as it is optional with a person either to own a motor car or not and in case he does not choose to have a motor car, he need not pay any fees at all. But the same argument can be applied in the case or a house tax or land tax. Such taxes are levied only on those people who own lands or houses and it could be said with equal propriety that a man need not own any house or land and in that event he could avoid the payment of these taxes. In the second place, even if the payment of a motor licence fee is a voluntary payment, it can still be regarded as tax if the fees that are realised on motor licences have not relation to the expenses that the Government incurs in keeping an office or bureau for the granting of licences and the collections are not appropriated for that purpose but go to the general revenue. Judging by this test, it appears to us that the High Court was perfectly right in holding that the contributions imposed under S. 58 of the Bombay Public Trusts Act are really fees and not taxes.24. In the first place, the contributions which are collected under S. 58, are to be credited to the Public Trusts Administration Fund as constituted under S. 57. This is a special fund which is to be applied exclusively for payment of charges for expenses incidental to the regulation of public trusts and for carrying into effect the provisions of the Act. It vests in the Charity Commissioner and the custody and investments of the money belonging to the fund and the disbursement and payment therefrom are to be effected not in the manner in which general revenues are disbursed but in the way prescribed by the rules made under the Act. The collections, therefore, are not merged in the general revenue, but they are car-marked and set apart for this particular purpose. It is true under that S. 6-A of the Act, the officers and servants appointed under the Act are to draw their pay and allowances from the Consolidated Fund of the State but we agree with what has been said by Mr. Justice Shah of the Bombay High Court that this provision is made only for the purpose of facilitating the administration and not with a view to mix up the fund with the general revenue collected for Government purposes. This would be clear from the provision of S. 6-B which provides that our of the Public Trusts Administration Fund all the costs, which the State Government may determine on account of pay pension, leave and other allowances of all the officers appointed under this Act, shall be paid. It is the Public Trust Administration Fund, therefore, which meets all the expenses of the administration of trust property within the scheme of the Act, and it is to meet the expenses of this administration that these collections are levied. As has been said by the learned Judges of the High according to the concept of a modern State, it is not necessary that services should be rendered only at the request of particular people, it is enough that payments are demanded for rendering services which the State considers beneficial in the public interest and which the people have to accept whether they are willing or not. Our conclusion, therefore, is that S. 58 is not ultra vires of the State Legislature by reason of the fact that it is not a tax but a fee which comes within the purview of entry 47 of List III in Schedule 7 of the Constitution.25. | 1[ds]Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people.What sub-cl. (a) of cl. (2) of Article 25 contemplates is not State regulation of the religious practices as such which are protected unless they run counter to public health or morality but of activities which are really of an economic, commercial or political character though they are associated with religiouslanguage of the two cls. (b) and (d) of Art. 26 would at once bring out the difference between the two. In regard to affairs in matters of religion, the right of management given to a religious body, is a guaranteed fundamental right which no legislation can take away. On the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted; but here again it should be remembered that under Art 26(d), it is the religious denomination itself which has been given the right to administer its property in accordance with any law which the State may validly impose. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by Art, 26 (d) of theReligious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking or commercial or economic, character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.Of course, the scale of expenses to be incurred in connection with these religious observances may be and is a matter of administration of property belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the institution, proper control can certainly be exercised by State agencies as the lawis a well-settled principle of law that trustees in charge of trust properties should not keep cash money in their hands which are not necessary for immediate expenses; and a list of approved securities upon which trust money could be invested is invariably laid down in every legislation on the subject of trust. There is nothing wrong in S. 36 of the Act. Immovable trust properties are inalienable by their very nature and a provision that they could be alienated only with the previous sanction of the Charity Commissioner seems to us to be a perfectly salutarythe author of the trust chooses to appoint he Charity Commissioner a trustee, no objection can possibly be taken to such action; but if the court is authorised to make such appointment, the provisions of this section in the general form as it stands appear to us to be open to seriousour opinion, the provision of S. 44 relating to the appointment of the Charity Commissioner as a trustee of any public trust by the court without any reservation in regard to religious institutions like temples and Maths is unconstitutional and must be held to be void.The very same objections will apply to the provisions of cls. (3) to (6) of S. 47. The court can certainly be empowered to appoint a trustee to fill up a vacancy caused by any of the reasons mentioned in S. 47(1), and it is quite a salutary principle that in making the appointment the court should have regard to matters specified in cl. (4) of S. 47; but the provision of cl. (3) to the extent that it authorises the court to appoint the Charity Commissioner as the trustee - and who according to the provisions of clause (5) is to be the sole trustee - cannot be regarded as valid in regard to religious institutions of the type we have just indicated. To allow the Charity Commissioner to function as the Sheba it of a temple or the superior of a Math would certainly amount to interference with the religious affairs of this institution.We hold accordingly that the provisions of cls. (3) to (6) of S. 47 to the extent that they related to the appointment of the Charity Commissioner as a trustee of a religious trust like temple and Math are invalid. If these provisions of S. 47 are eliminated no objection can be taken to the provision of S. 48 as it stands. This section will in that event be confined only to cases where the Charity Commissioner has been appointed a trustee by the author of the trust himself and the administration charges provided by this section can certainly be levied on thesections purport to lay down how the doctrine of cy pres is to be applied in regard to the administration of public trust of a religious or charitable character. The doctrine of cy pres as developed by the Equity Courts in England, has been adopted by our Indian courts since a long time past.The provisions of sections 55 and 56, however, have extended the doctrine much beyond its recognised limits and have further introduced certain principles which run counter to well-established rules of law regarding the administration of charitable trusts. When the particular purpose for which a charitable trust is created fails or by reason of certain circumstances the trust cannot be carried into effect either in whole or in part or where there is a surplus left after exhausting the purposes specified by the settlor the court would not when there is a general charitable intention expressed by the settlor, allow the trust to fail but would execute it cy press, that is to say, in some way as nearly as possible to that which the author of the trust intended. In such cases, it cannot be disputed that the court can frame a scheme and give suitable directions regarding the objects upon which the trust money can be spent.It is well established, however, that where the donors intention can be given effect to the court has no authority to sanction any deviation from the intentions expressed by the settlor on the grounds of expediency and the court cannot exercise the power of applying the trust property or its income to other purposes simply because it considers them to be more expedient or more beneficial than what the settlor hadreligious sect or denomination has the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this includes the right to spend the trust property or its income for the religious purposes and objects indicated by the found of the trust or established by usage obtaining in particular institution. To divert the trust property or funds for purposes which the Charity Commissioner or the court considers expedient or proper, although the original objects of the founder can still be carried out, is to our minds an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religiousconsider it to be a violation of the freedom of religion and of the right which a religious denomination has under our Constitution to manage its own affairs in matters of religion, to allow any secular authority to divert the trust money for purposes other than those for which the trust was created. The State can step in only when the trust fails or is incapable of being carried out either in whole or in part. We hold, there chat Cl. (3) of S. 55 which contains the offending provision and the corresponding provision relating to the powers of the court occurring in the latter part of S. 56 (1), must be held to bethis contribution is levied purely for purposes of due administration of the trust property and for defraying the expenses incurred in connection with the same, no objection could be taken to the provision of the section on the ground of its infringing any fundamental rights of theis no doubt that a fee resembles a tax in many respects and the question which presents difficulty is, what is the proper test by which the one could be distinguished from the other? A tax is undoubtedly in the nature of a compulsory exaction of money by a public authority for public purposes the payment of which is enforced by law. But the other and equally important characteristic of a tax is, that the imposition is made for public purpose to meet general expenses of the State without reference to any special advantage to be conferred upon the payers of thefollows, therefore, that although a tax may be levied upon particular classes of persons or particular kinds of property, it is imposed not to confer any special benefit upon individual persons and the collections are all merged in the general revenue of the State to be applied for general public purposes. Tax is a common burden and the only return which the tax-payer gets is participation in the common benefits of theon the other hand, are payments primarily in the public interest, but for some special service rendered or some special work done for the benefit of those from whom the payments are demanded. Thus id fees there is always an element of quid pro quo; which is absent in a tax. It may not be possible to prove in every case that the fees that are collected by the Government approximate to the expenses that are incurred by it in rendering any particular kind of services or in performing any particular work for the benefit of certain individuals. But in order that the collections made by the Government can rank as fees, there must be correlation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services. This can be proved by showing that on the face of the legislative provision itself, the collections are not merged in the general revenue but are set apart and appropriated for rendering thesetwo elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly and in the second place, the amount collected must be car-marked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general publicthe first place, the contributions which are collected under S. 58, are to be credited to the Public Trusts Administration Fund as constituted under S. 57. This is a special fund which is to be applied exclusively for payment of charges for expenses incidental to the regulation of public trusts and for carrying into effect the provisions of the Act. It vests in the Charity Commissioner and the custody and investments of the money belonging to the fund and the disbursement and payment therefrom are to be effected not in the manner in which general revenues are disbursed but in the way prescribed by the rules made under the Act. The collections, therefore, are not merged in the general revenue, but they are car-marked and set apart for this particularis true under that S. 6-A of the Act, the officers and servants appointed under the Act are to draw their pay and allowances from the Consolidated Fund of the State but we agree with what has been said by Mr. Justice Shah of the Bombay High Court that this provision is made only for the purpose of facilitating the administration and not with a view to mix up the fund with the general revenue collectedpurposes. This would be clear from the provision of S. 6-B which provides that our of the Public Trusts Administration Fund all the costs, which the State Government may determine on account of pay pension, leave and other allowances of all the officers appointed under this Act, shall be paid. It is the Public Trust Administration Fund, therefore, which meets all the expenses of the administration of trust property within the scheme of the Act, and it is to meet the expenses of this administration that these collections arehas been said by the learned Judges of the High according to the concept of a modern State, it is not necessary that services should be rendered only at the request of particular people, it is enough that payments are demanded for rendering services which the State considers beneficial in the public interest and which the people have to accept whether they are willing or not. Our conclusion, therefore, is that S. 58 is not ultra vires of the State Legislature by reason of the fact that it is not a tax but a fee which comes within the purview of entry 47 of List III in Schedule 7 of the Constitution. | 1 | 8,376 | 2,514 | ### Instruction:
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collections are all merged in the general revenue of the State to be applied for general public purposes. Tax is a common burden and the only return which the tax-payer gets is participation in the common benefits of the State. Fees, on the other hand, are payments primarily in the public interest, but for some special service rendered or some special work done for the benefit of those from whom the payments are demanded. Thus id fees there is always an element of quid pro quo; which is absent in a tax. It may not be possible to prove in every case that the fees that are collected by the Government approximate to the expenses that are incurred by it in rendering any particular kind of services or in performing any particular work for the benefit of certain individuals. But in order that the collections made by the Government can rank as fees, there must be correlation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services. This can be proved by showing that on the face of the legislative provision itself, the collections are not merged in the general revenue but are set apart and appropriated for rendering these services.23. Thus two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly and in the second place, the amount collected must be car-marked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes. As has been pointed out in the Madras case mentioned above, too much stress should not be laid on the presence or absences of what has been called the coercive element. It is not correct to say that as distinguished from taxation which is compulsory payment, the payment of fees is always voluntary, it being a matter of choice with individuals either to accept the service or not for which fees are to be paid. We may cite for example the case of a licence fee for a motor car. It is argued that this would be a fee and not a tax, as it is optional with a person either to own a motor car or not and in case he does not choose to have a motor car, he need not pay any fees at all. But the same argument can be applied in the case or a house tax or land tax. Such taxes are levied only on those people who own lands or houses and it could be said with equal propriety that a man need not own any house or land and in that event he could avoid the payment of these taxes. In the second place, even if the payment of a motor licence fee is a voluntary payment, it can still be regarded as tax if the fees that are realised on motor licences have not relation to the expenses that the Government incurs in keeping an office or bureau for the granting of licences and the collections are not appropriated for that purpose but go to the general revenue. Judging by this test, it appears to us that the High Court was perfectly right in holding that the contributions imposed under S. 58 of the Bombay Public Trusts Act are really fees and not taxes.24. In the first place, the contributions which are collected under S. 58, are to be credited to the Public Trusts Administration Fund as constituted under S. 57. This is a special fund which is to be applied exclusively for payment of charges for expenses incidental to the regulation of public trusts and for carrying into effect the provisions of the Act. It vests in the Charity Commissioner and the custody and investments of the money belonging to the fund and the disbursement and payment therefrom are to be effected not in the manner in which general revenues are disbursed but in the way prescribed by the rules made under the Act. The collections, therefore, are not merged in the general revenue, but they are car-marked and set apart for this particular purpose. It is true under that S. 6-A of the Act, the officers and servants appointed under the Act are to draw their pay and allowances from the Consolidated Fund of the State but we agree with what has been said by Mr. Justice Shah of the Bombay High Court that this provision is made only for the purpose of facilitating the administration and not with a view to mix up the fund with the general revenue collected for Government purposes. This would be clear from the provision of S. 6-B which provides that our of the Public Trusts Administration Fund all the costs, which the State Government may determine on account of pay pension, leave and other allowances of all the officers appointed under this Act, shall be paid. It is the Public Trust Administration Fund, therefore, which meets all the expenses of the administration of trust property within the scheme of the Act, and it is to meet the expenses of this administration that these collections are levied. As has been said by the learned Judges of the High according to the concept of a modern State, it is not necessary that services should be rendered only at the request of particular people, it is enough that payments are demanded for rendering services which the State considers beneficial in the public interest and which the people have to accept whether they are willing or not. Our conclusion, therefore, is that S. 58 is not ultra vires of the State Legislature by reason of the fact that it is not a tax but a fee which comes within the purview of entry 47 of List III in Schedule 7 of the Constitution.25.
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the founder can still be carried out, is to our minds an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religiousconsider it to be a violation of the freedom of religion and of the right which a religious denomination has under our Constitution to manage its own affairs in matters of religion, to allow any secular authority to divert the trust money for purposes other than those for which the trust was created. The State can step in only when the trust fails or is incapable of being carried out either in whole or in part. We hold, there chat Cl. (3) of S. 55 which contains the offending provision and the corresponding provision relating to the powers of the court occurring in the latter part of S. 56 (1), must be held to bethis contribution is levied purely for purposes of due administration of the trust property and for defraying the expenses incurred in connection with the same, no objection could be taken to the provision of the section on the ground of its infringing any fundamental rights of theis no doubt that a fee resembles a tax in many respects and the question which presents difficulty is, what is the proper test by which the one could be distinguished from the other? A tax is undoubtedly in the nature of a compulsory exaction of money by a public authority for public purposes the payment of which is enforced by law. But the other and equally important characteristic of a tax is, that the imposition is made for public purpose to meet general expenses of the State without reference to any special advantage to be conferred upon the payers of thefollows, therefore, that although a tax may be levied upon particular classes of persons or particular kinds of property, it is imposed not to confer any special benefit upon individual persons and the collections are all merged in the general revenue of the State to be applied for general public purposes. Tax is a common burden and the only return which the tax-payer gets is participation in the common benefits of theon the other hand, are payments primarily in the public interest, but for some special service rendered or some special work done for the benefit of those from whom the payments are demanded. Thus id fees there is always an element of quid pro quo; which is absent in a tax. It may not be possible to prove in every case that the fees that are collected by the Government approximate to the expenses that are incurred by it in rendering any particular kind of services or in performing any particular work for the benefit of certain individuals. But in order that the collections made by the Government can rank as fees, there must be correlation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services. This can be proved by showing that on the face of the legislative provision itself, the collections are not merged in the general revenue but are set apart and appropriated for rendering thesetwo elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly and in the second place, the amount collected must be car-marked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general publicthe first place, the contributions which are collected under S. 58, are to be credited to the Public Trusts Administration Fund as constituted under S. 57. This is a special fund which is to be applied exclusively for payment of charges for expenses incidental to the regulation of public trusts and for carrying into effect the provisions of the Act. It vests in the Charity Commissioner and the custody and investments of the money belonging to the fund and the disbursement and payment therefrom are to be effected not in the manner in which general revenues are disbursed but in the way prescribed by the rules made under the Act. The collections, therefore, are not merged in the general revenue, but they are car-marked and set apart for this particularis true under that S. 6-A of the Act, the officers and servants appointed under the Act are to draw their pay and allowances from the Consolidated Fund of the State but we agree with what has been said by Mr. Justice Shah of the Bombay High Court that this provision is made only for the purpose of facilitating the administration and not with a view to mix up the fund with the general revenue collectedpurposes. This would be clear from the provision of S. 6-B which provides that our of the Public Trusts Administration Fund all the costs, which the State Government may determine on account of pay pension, leave and other allowances of all the officers appointed under this Act, shall be paid. It is the Public Trust Administration Fund, therefore, which meets all the expenses of the administration of trust property within the scheme of the Act, and it is to meet the expenses of this administration that these collections arehas been said by the learned Judges of the High according to the concept of a modern State, it is not necessary that services should be rendered only at the request of particular people, it is enough that payments are demanded for rendering services which the State considers beneficial in the public interest and which the people have to accept whether they are willing or not. Our conclusion, therefore, is that S. 58 is not ultra vires of the State Legislature by reason of the fact that it is not a tax but a fee which comes within the purview of entry 47 of List III in Schedule 7 of the Constitution.
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Ambalal Chimmanlal Chokshi Vs. State of Maharashtra | contained an exercise book some pages of which were found to be torn and a diary in which something was written in code language. The bag was also attached and brought to the flat. When the bags in which the gold pieces were found at the bottom of the pit, was opened, the gold piece were found wrapped in newspapers and between two slabs of gold in each bag were found two slips of paper on which the weight of gold and its price were noted. It appeared that some one had calculated the value of the gold. A piece of a newspaper was also found in one of the bags. Wagh thereupon ordered the search of the flat for newspapers and he found a newspaper which had a piece torn out and this newspaper and the piece found in the bag fitted exactly. Chokshi was thereupon prosecuted for offences under the Gold Control Order and the Customs Act. 4. The short question in this case was whether the two bags had been thrown from the flat of Chokshi or from the flat of any of the other tenants of the building and who could have thrown them. It was obvious that whoever threw the bags had reasons to hide the gold at least temporarily while the search was going on. Chokshi naturally denied that he had thrown these bags, but he admitted that the other bag which was found in the balcony of Modys flat was his. His explanation was that Chandchankar had probably thrown the gold since he was making enquiries about the price of gold from him. He admitted that the slips of papers on which the amount of gold was written were in his handwriting but he said that he had written them to find out the price of gold which presumably Chandchankar had for sale. 5. The High Court and the Presidency Magistrate have believed the prosecution case and have deduced on circumstantial evidence that it must have been Chokshi who threw the bags from the window of his lavatory at the back of the flat since it was directly above the place where the bags had fallen and in the course of failing has killed a pigeon nesting there. They disbelieved the version of Chokshi that it was Chandchankar who could have thrown the gold. The reasons given by the High Court in support of accepting the prosecution version are very convincing and, in fact, they leave no room for doubt whatever. 6. To begin with Chandchankar, if he had thrown the bags, could not have got the newspapers from the flat to wrap the gold pieces including a piece of newspaper torn out of a newspaper that was later found in the flat. This piece of newspaper, remnant of which was found in the flat clearly shows that it could not have been Chandchankar, did not have sufficient time between the arrival of Rane and the hearing of the thud by Kotak to have completed all this operation. Again, Chandchankar, according to the evidence of Rane, was in the drawing room all the time within his sight and had not moved from the place. The High Court ruled out the possibility of the young boy or the young girl of having done this. They also ruled out the possibility of the wife having thrown the bags. The bags contained papers torn from the exercise book on which the account of gold was written by Chokshi himself. Each bag had one statement of account and it is curious that when the gold in the bags was weighed, weight of each bag tallied with the weight written on the slips. Chandchankar could not possibly have pushed in pieces of papers in such a way that the weight of the gold pieces and the written account would tally. Further the finding of the third bag in the balcony of Modys flat quite clearly demonstrated that the bag had come from someone in the house or belonging to the house because Chandchankar had no access to that bag containing over a lakh of rupees in currency notes. 7. Ordinarily this Court does not enter into questions of fact and we were most reluctant to do so but for a statement of Kotak that he had heard a movement in the flat above his own flat and had seen someone in the flat above his who was not the accused or any member of his family. Because of this statement it was argued that it might have been Chandchankar who had thrown the bags. However, the entire circumstantial evidence is against Chandchankar having done so : the writing on the slips of papers, which accused admits was his own; the fact that Rane kept Chandchankar within his sight till the Panchas arrived and further that Chandchankar would not know that throwing anything out of the back lavatory window would drop it in the pit at the back of the flat. All this clearly demonstrates that it must have been accused Chokshi who was responsible for throwing the bags. By throwing the bags he cannot get rid of the possession of gold which under the law makes him responsible under the Gold Control Act and the Customs Act. This was undeclared gold of foreign origin and he could not escape the consequences of possessing such gold.8. It was faintly argued that after the Gold Control Order came the Gold Bond Scheme and he was discriminated against his possession was treated as an offence. His contention is that there is discrimination between him and others who had committed similar offences and had evaded prosecution by getting gold bonds. We do not think that the argument merits any consideration. There is no discrimination if one person is prosecuted and the other is not. There are so many criminals who are going about unprosecuted but it cannot be said that those who are prosecuted are discriminated against because some are not prosecuted. | 0[ds]6. To begin with Chandchankar, if he had thrown the bags, could not have got the newspapers from the flat to wrap the gold pieces including a piece of newspaper torn out of a newspaper that was later found in the flat. This piece of newspaper, remnant of which was found in the flat clearly shows that it could not have been Chandchankar, did not have sufficient time between the arrival of Rane and the hearing of the thud by Kotak to have completed all this operation. Again, Chandchankar, according to the evidence of Rane, was in the drawing room all the time within his sight and had not moved from the place. The High Court ruled out the possibility of the young boy or the young girl of having done this. They also ruled out the possibility of the wife having thrown the bags. The bags contained papers torn from the exercise book on which the account of gold was written by Chokshi himself. Each bag had one statement of account and it is curious that when the gold in the bags was weighed, weight of each bag tallied with the weight written on the slips. Chandchankar could not possibly have pushed in pieces of papers in such a way that the weight of the gold pieces and the written account would tally. Further the finding of the third bag in the balcony of Modys flat quite clearly demonstrated that the bag had come from someone in the house or belonging to the house because Chandchankar had no access to that bag containing over a lakh of rupees in currency notes7. Ordinarily this Court does not enter into questions of fact and we were most reluctant to do so but for a statement of Kotak that he had heard a movement in the flat above his own flat and had seen someone in the flat above his who was not the accused or any member of his family. Because of this statement it was argued that it might have been Chandchankar who had thrown the bags. However, the entire circumstantial evidence is against Chandchankar having done so : the writing on the slips of papers, which accused admits was his own; the fact that Rane kept Chandchankar within his sight till the Panchas arrived and further that Chandchankar would not know that throwing anything out of the back lavatory window would drop it in the pit at the back of the flat. All this clearly demonstrates that it must have been accused Chokshi who was responsible for throwing the bags. By throwing the bags he cannot get rid of the possession of gold which under the law makes him responsible under the Gold Control Act and the Customs Act. This was undeclared gold of foreign origin and he could not escape the consequences of possessing such gold.8. It was faintly argued that after the Gold Control Order came the Gold Bond Scheme and he was discriminated against his possession was treated as an offence. His contention is that there is discrimination between him and others who had committed similar offences and had evaded prosecution by getting gold bonds.We do not think that the argument merits any consideration. There is no discrimination if one person is prosecuted and the other is not. There are so many criminals who are going about unprosecuted but it cannot be said that those who are prosecuted are discriminated against because some are not prosecuted. | 0 | 1,857 | 617 | ### Instruction:
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contained an exercise book some pages of which were found to be torn and a diary in which something was written in code language. The bag was also attached and brought to the flat. When the bags in which the gold pieces were found at the bottom of the pit, was opened, the gold piece were found wrapped in newspapers and between two slabs of gold in each bag were found two slips of paper on which the weight of gold and its price were noted. It appeared that some one had calculated the value of the gold. A piece of a newspaper was also found in one of the bags. Wagh thereupon ordered the search of the flat for newspapers and he found a newspaper which had a piece torn out and this newspaper and the piece found in the bag fitted exactly. Chokshi was thereupon prosecuted for offences under the Gold Control Order and the Customs Act. 4. The short question in this case was whether the two bags had been thrown from the flat of Chokshi or from the flat of any of the other tenants of the building and who could have thrown them. It was obvious that whoever threw the bags had reasons to hide the gold at least temporarily while the search was going on. Chokshi naturally denied that he had thrown these bags, but he admitted that the other bag which was found in the balcony of Modys flat was his. His explanation was that Chandchankar had probably thrown the gold since he was making enquiries about the price of gold from him. He admitted that the slips of papers on which the amount of gold was written were in his handwriting but he said that he had written them to find out the price of gold which presumably Chandchankar had for sale. 5. The High Court and the Presidency Magistrate have believed the prosecution case and have deduced on circumstantial evidence that it must have been Chokshi who threw the bags from the window of his lavatory at the back of the flat since it was directly above the place where the bags had fallen and in the course of failing has killed a pigeon nesting there. They disbelieved the version of Chokshi that it was Chandchankar who could have thrown the gold. The reasons given by the High Court in support of accepting the prosecution version are very convincing and, in fact, they leave no room for doubt whatever. 6. To begin with Chandchankar, if he had thrown the bags, could not have got the newspapers from the flat to wrap the gold pieces including a piece of newspaper torn out of a newspaper that was later found in the flat. This piece of newspaper, remnant of which was found in the flat clearly shows that it could not have been Chandchankar, did not have sufficient time between the arrival of Rane and the hearing of the thud by Kotak to have completed all this operation. Again, Chandchankar, according to the evidence of Rane, was in the drawing room all the time within his sight and had not moved from the place. The High Court ruled out the possibility of the young boy or the young girl of having done this. They also ruled out the possibility of the wife having thrown the bags. The bags contained papers torn from the exercise book on which the account of gold was written by Chokshi himself. Each bag had one statement of account and it is curious that when the gold in the bags was weighed, weight of each bag tallied with the weight written on the slips. Chandchankar could not possibly have pushed in pieces of papers in such a way that the weight of the gold pieces and the written account would tally. Further the finding of the third bag in the balcony of Modys flat quite clearly demonstrated that the bag had come from someone in the house or belonging to the house because Chandchankar had no access to that bag containing over a lakh of rupees in currency notes. 7. Ordinarily this Court does not enter into questions of fact and we were most reluctant to do so but for a statement of Kotak that he had heard a movement in the flat above his own flat and had seen someone in the flat above his who was not the accused or any member of his family. Because of this statement it was argued that it might have been Chandchankar who had thrown the bags. However, the entire circumstantial evidence is against Chandchankar having done so : the writing on the slips of papers, which accused admits was his own; the fact that Rane kept Chandchankar within his sight till the Panchas arrived and further that Chandchankar would not know that throwing anything out of the back lavatory window would drop it in the pit at the back of the flat. All this clearly demonstrates that it must have been accused Chokshi who was responsible for throwing the bags. By throwing the bags he cannot get rid of the possession of gold which under the law makes him responsible under the Gold Control Act and the Customs Act. This was undeclared gold of foreign origin and he could not escape the consequences of possessing such gold.8. It was faintly argued that after the Gold Control Order came the Gold Bond Scheme and he was discriminated against his possession was treated as an offence. His contention is that there is discrimination between him and others who had committed similar offences and had evaded prosecution by getting gold bonds. We do not think that the argument merits any consideration. There is no discrimination if one person is prosecuted and the other is not. There are so many criminals who are going about unprosecuted but it cannot be said that those who are prosecuted are discriminated against because some are not prosecuted.
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### Explanation:
6. To begin with Chandchankar, if he had thrown the bags, could not have got the newspapers from the flat to wrap the gold pieces including a piece of newspaper torn out of a newspaper that was later found in the flat. This piece of newspaper, remnant of which was found in the flat clearly shows that it could not have been Chandchankar, did not have sufficient time between the arrival of Rane and the hearing of the thud by Kotak to have completed all this operation. Again, Chandchankar, according to the evidence of Rane, was in the drawing room all the time within his sight and had not moved from the place. The High Court ruled out the possibility of the young boy or the young girl of having done this. They also ruled out the possibility of the wife having thrown the bags. The bags contained papers torn from the exercise book on which the account of gold was written by Chokshi himself. Each bag had one statement of account and it is curious that when the gold in the bags was weighed, weight of each bag tallied with the weight written on the slips. Chandchankar could not possibly have pushed in pieces of papers in such a way that the weight of the gold pieces and the written account would tally. Further the finding of the third bag in the balcony of Modys flat quite clearly demonstrated that the bag had come from someone in the house or belonging to the house because Chandchankar had no access to that bag containing over a lakh of rupees in currency notes7. Ordinarily this Court does not enter into questions of fact and we were most reluctant to do so but for a statement of Kotak that he had heard a movement in the flat above his own flat and had seen someone in the flat above his who was not the accused or any member of his family. Because of this statement it was argued that it might have been Chandchankar who had thrown the bags. However, the entire circumstantial evidence is against Chandchankar having done so : the writing on the slips of papers, which accused admits was his own; the fact that Rane kept Chandchankar within his sight till the Panchas arrived and further that Chandchankar would not know that throwing anything out of the back lavatory window would drop it in the pit at the back of the flat. All this clearly demonstrates that it must have been accused Chokshi who was responsible for throwing the bags. By throwing the bags he cannot get rid of the possession of gold which under the law makes him responsible under the Gold Control Act and the Customs Act. This was undeclared gold of foreign origin and he could not escape the consequences of possessing such gold.8. It was faintly argued that after the Gold Control Order came the Gold Bond Scheme and he was discriminated against his possession was treated as an offence. His contention is that there is discrimination between him and others who had committed similar offences and had evaded prosecution by getting gold bonds.We do not think that the argument merits any consideration. There is no discrimination if one person is prosecuted and the other is not. There are so many criminals who are going about unprosecuted but it cannot be said that those who are prosecuted are discriminated against because some are not prosecuted.
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UNION OF INDIA AND ANOTHER Vs. ROSAMMA BENNY AND OTHERS | Central Administrative Tribunal (the Tribunal, for short) allowing O.A. No. 180/523/2014 filed by Rosamma Benny, Jessy S. Babu and Sreekala P.V., respondent Nos. 1, 2 and 3 respectively before us. 3. The High Court in the impugned order has held that the respondent Nos. 1, 2 and 3 were entitled to financial upgradation under the Modified Assured Career Progression Scheme (MACP, for short) as they have been working as Enquiry-Cum-Reservation Clerks (ECRC, for short) w.e.f. 01.11.2003 and therefore, have completed ten years in the cadre of ECRC. Accordingly, the Tribunal was justified and correct in granting the relief by placing the three respondents in the pay band- II with grade pay of Rs. 4600 w.e.f. 01.11.2013. 4. The impugned order, however, fails to notice and examine the circular dated 12.09.2012 issued by the Ministry of Railways (Railway Board) on behalf of the Government of India clarifying grant of benefits under the MACP Scheme to employees who had qualified and were appointed under the promotion quota after clearing Limited Departmental Competitive Examination (LDCE, for short). The aforesaid clarification was issued after the matter was examined in consultation with the Department of Personnel & Training (DoP&T), the nodal department, and stipulates as under: References have been received from Zonal Railways seeking clarification regarding grant of benefits under MACPs in respect of the employees qualifying through LDCE/GDCE. The matter has been examined in consultation with Department of Personnel & Training (DoP&T), the nodal department of Government on MACPS and it has been declared as under: (i) if the relevant RRs provide for filling up of vacancies in a grade by Direct Recruitment, induction of an employee to that grade through LDCE/GDCE may be treated as Direct Recruitment for the purpose of grant of financial upgradation under MACPS. In such cases past service rendered in a lower pay scale/Grade Pay shall NOT be counted for the purpose of MACP Scheme. (ii) if the relevant RRs prescribe a promotion Quota to be filled on the basis of LDCE/GDCE, such appointment would be treated as promotion for the purpose of benefit under the MACPS and in such cases past regular service shall also be counted for further benefits, if any, under the MACP Scheme. The Indian Railway Establishment Manual Vol. I with regard to the filling of posts to ECRC states as under: 129. (1) The posts in the category of Enquiry- Cum- Reservation Clerks (ECRC) in scale of Rs. 4500-7000 w.e.f 1.1.96 will be filled as under:- (i) 25% by direct recruitment through Railway Recruitment Board: and (ii) 75% by promotion by selection from amongst Sr. Commercial Clerks and Sr. Ticket Collectors in the scale of pay Rs. 4000-6000 (RSRP) and Commercial Clerks and Ticket Collectors in the scale of pay Rs. 3200-4900 (RSPP) and Rs. 3050-4590 (RSRP) respectively who are suitable for posting as ECRC involving direct contact with general public. Commercial Clerks and Ticket Collectors in grades Rs. 3050-4590 and 3200-4900 respectively should have completed a minimum of three years service in the respective grade. The contention of the appellants is that the three respondents were appointed to the post of ECRC under the promotion quota and their appointment cannot be treated as regular/direct recruitment to the service. 5. The appellants in the reply filed before the Tribunal had stated that Rosamma Benny, respondent No. 1, was appointed as an Office Clerk on 01.04.1982 under Sports Quota in Western Railways in the scale of Rs.260-400/Rs.950-1500. Thereafter, she was transferred to the Palakkad Division in Southern Railway on 13.02.1989 as a Commercial Clerk in the scale of Rs.290- 430/Rs.975-1540. On 14.08.1995 (subsequently revised to 28.12.1993), she was promoted as ECRC-II in the scale of Rs.1200-2040/Rs.4500-7000. Subsequently, respondent No. 1 was promoted as ECRC-I in the scale of Rs.5000-8000 w.e.f. 01.11.2003 (proforma) and 02.01.2009 (regular). Similarly, Jessy S. Babu, respondent No. 2, was appointed as an Office Clerk in South Eastern Railway on 02.03.1984 in the scale of Rs.260- 400/Rs.950-1500. She was transferred to the Trivandrum Division in Southern Railway on 25.06.1986 as a Commercial Clerk in the scale of Rs.290-430/Rs.975-1540. Subsequently, on 14.03.1995 she was promoted as ECRC-II in the scale of Rs.1200- 2040/Rs.4500-7000. On 01.11.2003 she was further promoted as ECRC-I in the scale of Rs.5000-8000. Sreekala P.V., respondent No. 3, was appointed as an Office Clerk on 13.03.1984 in the scale of Rs.260-400/Rs.950-1500 in South Central Railway. On 15.07.1987 she was transferred to the Madras Division in Southern Railway as a Commercial Clerk in the scale of Rs.290-430/Rs.975- 1540. Thereafter, she was promoted as ECRC-II on 22.08.1993 in the scale of Rs.1200-2040/4500-7000. On 01.11.2003 she was promoted as ECRC-I in the scale of Rs.5000-8000. 6. We have referred to the aforesaid position as it has to be examined whether posting on transfer as Commercial Clerks in the case of the respondents can be and should be treated as the first promotion. It is also to be examined whether there has been any merger of pay scales/upgradations which may have a bearing on application of the MACP Scheme to the present respondents by taking into account the circular dated 10.06.2009 issued by the Ministry of Railways (Railway Board) which states that three financial upgradations would be counted from the direct entry grade on completion of 10, 20 and 30 years of service . A further circular dated 29.09.2010 issued by the Ministry of Railways (Railway Board) giving point-wise clarifications, inter alia, states that benefit under the MACP Scheme would be available from the date of actual joining of the post in the entry grade. As noted, enquiry in respect of appointment of the three respondents to the post of ECRC is required in terms of the circular dated 12.09.2012 and Clause 129 of the Indian Railway Establishment, Manual Vol. I, quoted above. 7. These aspects have not been examined by the Tribunal and the High Court in the impugned orders. Normally we would have decided the question but find ourselves in difficulty in absence of details as there is no clarity on facts. | 1[ds]4. The impugned order, however, fails to notice and examine the circular dated 12.09.2012 issued by the Ministry of Railways (Railway Board) on behalf of the Government of India clarifying grant of benefits under the MACP Scheme to employees who had qualified and were appointed under the promotion quota after clearing Limited Departmental Competitive Examination (LDCE, for short)A further circular dated 29.09.2010 issued by the Ministry of Railways (Railway Board) giving point-wise clarifications, inter alia, states that benefit under the MACP Scheme would be available from the date of actual joining of the post in the entry grade. As noted, enquiry in respect of appointment of the three respondents to the post of ECRC is required in terms of the circular dated 12.09.2012 and Clause 129 of the Indian Railway Establishment, Manual Vol. I, quoted above7. These aspects have not been examined by the Tribunal and the High Court in the impugned orders. Normally we would have decided the question but find ourselves in difficulty in absence of details as there is no clarity on facts. | 1 | 1,202 | 201 | ### 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:
Central Administrative Tribunal (the Tribunal, for short) allowing O.A. No. 180/523/2014 filed by Rosamma Benny, Jessy S. Babu and Sreekala P.V., respondent Nos. 1, 2 and 3 respectively before us. 3. The High Court in the impugned order has held that the respondent Nos. 1, 2 and 3 were entitled to financial upgradation under the Modified Assured Career Progression Scheme (MACP, for short) as they have been working as Enquiry-Cum-Reservation Clerks (ECRC, for short) w.e.f. 01.11.2003 and therefore, have completed ten years in the cadre of ECRC. Accordingly, the Tribunal was justified and correct in granting the relief by placing the three respondents in the pay band- II with grade pay of Rs. 4600 w.e.f. 01.11.2013. 4. The impugned order, however, fails to notice and examine the circular dated 12.09.2012 issued by the Ministry of Railways (Railway Board) on behalf of the Government of India clarifying grant of benefits under the MACP Scheme to employees who had qualified and were appointed under the promotion quota after clearing Limited Departmental Competitive Examination (LDCE, for short). The aforesaid clarification was issued after the matter was examined in consultation with the Department of Personnel & Training (DoP&T), the nodal department, and stipulates as under: References have been received from Zonal Railways seeking clarification regarding grant of benefits under MACPs in respect of the employees qualifying through LDCE/GDCE. The matter has been examined in consultation with Department of Personnel & Training (DoP&T), the nodal department of Government on MACPS and it has been declared as under: (i) if the relevant RRs provide for filling up of vacancies in a grade by Direct Recruitment, induction of an employee to that grade through LDCE/GDCE may be treated as Direct Recruitment for the purpose of grant of financial upgradation under MACPS. In such cases past service rendered in a lower pay scale/Grade Pay shall NOT be counted for the purpose of MACP Scheme. (ii) if the relevant RRs prescribe a promotion Quota to be filled on the basis of LDCE/GDCE, such appointment would be treated as promotion for the purpose of benefit under the MACPS and in such cases past regular service shall also be counted for further benefits, if any, under the MACP Scheme. The Indian Railway Establishment Manual Vol. I with regard to the filling of posts to ECRC states as under: 129. (1) The posts in the category of Enquiry- Cum- Reservation Clerks (ECRC) in scale of Rs. 4500-7000 w.e.f 1.1.96 will be filled as under:- (i) 25% by direct recruitment through Railway Recruitment Board: and (ii) 75% by promotion by selection from amongst Sr. Commercial Clerks and Sr. Ticket Collectors in the scale of pay Rs. 4000-6000 (RSRP) and Commercial Clerks and Ticket Collectors in the scale of pay Rs. 3200-4900 (RSPP) and Rs. 3050-4590 (RSRP) respectively who are suitable for posting as ECRC involving direct contact with general public. Commercial Clerks and Ticket Collectors in grades Rs. 3050-4590 and 3200-4900 respectively should have completed a minimum of three years service in the respective grade. The contention of the appellants is that the three respondents were appointed to the post of ECRC under the promotion quota and their appointment cannot be treated as regular/direct recruitment to the service. 5. The appellants in the reply filed before the Tribunal had stated that Rosamma Benny, respondent No. 1, was appointed as an Office Clerk on 01.04.1982 under Sports Quota in Western Railways in the scale of Rs.260-400/Rs.950-1500. Thereafter, she was transferred to the Palakkad Division in Southern Railway on 13.02.1989 as a Commercial Clerk in the scale of Rs.290- 430/Rs.975-1540. On 14.08.1995 (subsequently revised to 28.12.1993), she was promoted as ECRC-II in the scale of Rs.1200-2040/Rs.4500-7000. Subsequently, respondent No. 1 was promoted as ECRC-I in the scale of Rs.5000-8000 w.e.f. 01.11.2003 (proforma) and 02.01.2009 (regular). Similarly, Jessy S. Babu, respondent No. 2, was appointed as an Office Clerk in South Eastern Railway on 02.03.1984 in the scale of Rs.260- 400/Rs.950-1500. She was transferred to the Trivandrum Division in Southern Railway on 25.06.1986 as a Commercial Clerk in the scale of Rs.290-430/Rs.975-1540. Subsequently, on 14.03.1995 she was promoted as ECRC-II in the scale of Rs.1200- 2040/Rs.4500-7000. On 01.11.2003 she was further promoted as ECRC-I in the scale of Rs.5000-8000. Sreekala P.V., respondent No. 3, was appointed as an Office Clerk on 13.03.1984 in the scale of Rs.260-400/Rs.950-1500 in South Central Railway. On 15.07.1987 she was transferred to the Madras Division in Southern Railway as a Commercial Clerk in the scale of Rs.290-430/Rs.975- 1540. Thereafter, she was promoted as ECRC-II on 22.08.1993 in the scale of Rs.1200-2040/4500-7000. On 01.11.2003 she was promoted as ECRC-I in the scale of Rs.5000-8000. 6. We have referred to the aforesaid position as it has to be examined whether posting on transfer as Commercial Clerks in the case of the respondents can be and should be treated as the first promotion. It is also to be examined whether there has been any merger of pay scales/upgradations which may have a bearing on application of the MACP Scheme to the present respondents by taking into account the circular dated 10.06.2009 issued by the Ministry of Railways (Railway Board) which states that three financial upgradations would be counted from the direct entry grade on completion of 10, 20 and 30 years of service . A further circular dated 29.09.2010 issued by the Ministry of Railways (Railway Board) giving point-wise clarifications, inter alia, states that benefit under the MACP Scheme would be available from the date of actual joining of the post in the entry grade. As noted, enquiry in respect of appointment of the three respondents to the post of ECRC is required in terms of the circular dated 12.09.2012 and Clause 129 of the Indian Railway Establishment, Manual Vol. I, quoted above. 7. These aspects have not been examined by the Tribunal and the High Court in the impugned orders. Normally we would have decided the question but find ourselves in difficulty in absence of details as there is no clarity on facts.
### Response:
1
### Explanation:
4. The impugned order, however, fails to notice and examine the circular dated 12.09.2012 issued by the Ministry of Railways (Railway Board) on behalf of the Government of India clarifying grant of benefits under the MACP Scheme to employees who had qualified and were appointed under the promotion quota after clearing Limited Departmental Competitive Examination (LDCE, for short)A further circular dated 29.09.2010 issued by the Ministry of Railways (Railway Board) giving point-wise clarifications, inter alia, states that benefit under the MACP Scheme would be available from the date of actual joining of the post in the entry grade. As noted, enquiry in respect of appointment of the three respondents to the post of ECRC is required in terms of the circular dated 12.09.2012 and Clause 129 of the Indian Railway Establishment, Manual Vol. I, quoted above7. These aspects have not been examined by the Tribunal and the High Court in the impugned orders. Normally we would have decided the question but find ourselves in difficulty in absence of details as there is no clarity on facts.
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Ramiah Asari Vs. State of Tamil Nadu | S.M. FAZAL ALI, J. 1. This appeal by special leave is directed against the judgment of the Madras High Court dated 15th July, 1974. The appellant has been convicted under Section 302, I.P.C. for causing the death of his wife Eswarammal and his father-in-law Chelliah Asari. The prosecution case has been narrated in detail in the judgments of the Sessions Judge and the High Court. It appears that the appellant was married to Eswarammal about 10 years before the occurrence and their relations were a little strained because the appellant was a spendthrift and did not pay any money to his wife. The father-in-law was gracious enough to permit the appellant to live in his house. In spite of this there had been constant quarrels between the husband and the wife. Sometimes the father-in-law intervened and at other times the neighbours. Two days prior to the occurrence, at about 10.30 p.m. there was again a quarrel between Eswarammal and the appellant but P.W. 3 intervened and pacified the matter. On the night of 24th May, 1973 at about 2.00 a.m. while P.Ws. 1 and 2 were sleeping in their houses they heard some noise coming from the court-yard of appellant, where the appellant and deceased were living P.Ws. 1 and 2 got up and came to the court-yard and saw the accused beating his wife. P.Ws. 1 and 2 then separated the appellant and his wife. By that time Chelliah Asari woke up and abused the appellant. The appellant then took hold of a aruval and started assaulting his wife and after inflicting a large number of injuries on the person he proceeded towards Chelliah Asari, his father-in-law, whom also he assaulted with the aruval. There were 22 injuries on the person of his deceased wife Eswarammal and 13 injuries on Chelliah Asari. The entire occurrence has been proved by P.Ws. 1 & 2 who have been believed by the two courts. Moreover, the appellant was caught hold by the witnesses and produced before the police station, where an F.I.R. was lodged at 2.30 a.m. the same night. The police visited the scene of occurrence and after sheet against the appellant. The case was thereafter put up before the Sessions Judge, who convicted the accused and sentenced the appellant to death. The High Court confirmed the sentence of death. Hence this appeal by special leave. 2. We have gone through the entire matter and heard Mr. S. J. S. Fernandez, counsel for the appellant. We are extremely grateful to Mr. S. J. S. Fernandez amicus curiae in this case and his arguments have been of very great assistance to us. We are, however, unable to find any error of law in the judgment of the High Court. The central evidence against the appellant consists of P.Ws. 1 and 2 who are close neighbours and who have been believed by the two courts. The evidence of these witnesses is corroborated by the conduct of the accused in producing the aruval (murder weapon) at the police station. It was argued by Mr. Fernandez that there was some discrepancy in the time when the F.I.R. was lodged. He relied on a statement of the Inspector that he came to the police station at 4.30 a.m., which according to him falsified the version of the prosecution that the F.I.R. was lodged at 2.30 a.m. We have perused the record and we feel that there is some confusion in this regard. According to the evidence of the Investigation Officer, he had reached the place of occurrence at 4.30 a.m. and he has also stated that he had received information of the occurrence at 2.30 a.m. It seems to us that the Sessions Judge instead of recording place of occurrence, wrote police station obviously by mistake, otherwise, the evidence of investigation officer becomes wholly unintelligible. It was then argued that there were other neighbours who were not examined by the prosecution. That, however, by itself is no ground to discredit the prosecution case. Finally, Mr. Fernandez pleaded on the question of sentence. It is, however, a case of unprovoked dastardly double murder and we feel that this was a fit case where the extreme penalty of death was rightly inflicted. The appellant was a spend-thrift. He killed not only his wife but also his father-in-law, who was his benefactor and had given shelter to him in his house. As many as 22 injuries were caused to the wife and 13 to the father-in-law, of whom some of them proved fatal. We, therefore, do not see any reason to reduce the sentence. | 0[ds]2. We have gone through the entire matter and heard Mr. S. J. S. Fernandez, counsel for the appellant. We are extremely grateful to Mr. S. J. S. Fernandez amicus curiae in this case and his arguments have been of very great assistance to us. We are, however, unable to find any error of law in the judgment of the High Court. The central evidence against the appellant consists of P.Ws. 1 and 2 who are close neighbours and who have been believed by the two courts. The evidence of these witnesses is corroborated by the conduct of the accused in producing the aruval (murder weapon) at the police station. It was argued by Mr. Fernandez that there was some discrepancy in the time when the F.I.R. was lodged. He relied on a statement of the Inspector that he came to the police station at 4.30 a.m., which according to him falsified the version of the prosecution that the F.I.R. was lodged at 2.30 a.m. We have perused the record and we feel that there is some confusion in this regard. According to the evidence of the Investigation Officer, he had reached the place of occurrence at 4.30 a.m. and he has also stated that he had received information of the occurrence at 2.30 a.m. It seems to us that the Sessions Judge instead of recording place of occurrence, wrote police station obviously by mistake, otherwise, the evidence of investigation officer becomes wholly unintelligible. It was then argued that there were other neighbours who were not examined by the prosecution. That, however, by itself is no ground to discredit the prosecution case. Finally, Mr. Fernandez pleaded on the question of sentence. It is, however, a case of unprovoked dastardly double murder and we feel that this was a fit case where the extreme penalty of death was rightly inflicted. The appellant was a. He killed not only his wife but also his, who was his benefactor and had given shelter to him in his house. As many as 22 injuries were caused to the wife and 13 to the, of whom some of them proved fatal. We, therefore, do not see any reason to reduce the sentence. | 0 | 845 | 411 | ### 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:
S.M. FAZAL ALI, J. 1. This appeal by special leave is directed against the judgment of the Madras High Court dated 15th July, 1974. The appellant has been convicted under Section 302, I.P.C. for causing the death of his wife Eswarammal and his father-in-law Chelliah Asari. The prosecution case has been narrated in detail in the judgments of the Sessions Judge and the High Court. It appears that the appellant was married to Eswarammal about 10 years before the occurrence and their relations were a little strained because the appellant was a spendthrift and did not pay any money to his wife. The father-in-law was gracious enough to permit the appellant to live in his house. In spite of this there had been constant quarrels between the husband and the wife. Sometimes the father-in-law intervened and at other times the neighbours. Two days prior to the occurrence, at about 10.30 p.m. there was again a quarrel between Eswarammal and the appellant but P.W. 3 intervened and pacified the matter. On the night of 24th May, 1973 at about 2.00 a.m. while P.Ws. 1 and 2 were sleeping in their houses they heard some noise coming from the court-yard of appellant, where the appellant and deceased were living P.Ws. 1 and 2 got up and came to the court-yard and saw the accused beating his wife. P.Ws. 1 and 2 then separated the appellant and his wife. By that time Chelliah Asari woke up and abused the appellant. The appellant then took hold of a aruval and started assaulting his wife and after inflicting a large number of injuries on the person he proceeded towards Chelliah Asari, his father-in-law, whom also he assaulted with the aruval. There were 22 injuries on the person of his deceased wife Eswarammal and 13 injuries on Chelliah Asari. The entire occurrence has been proved by P.Ws. 1 & 2 who have been believed by the two courts. Moreover, the appellant was caught hold by the witnesses and produced before the police station, where an F.I.R. was lodged at 2.30 a.m. the same night. The police visited the scene of occurrence and after sheet against the appellant. The case was thereafter put up before the Sessions Judge, who convicted the accused and sentenced the appellant to death. The High Court confirmed the sentence of death. Hence this appeal by special leave. 2. We have gone through the entire matter and heard Mr. S. J. S. Fernandez, counsel for the appellant. We are extremely grateful to Mr. S. J. S. Fernandez amicus curiae in this case and his arguments have been of very great assistance to us. We are, however, unable to find any error of law in the judgment of the High Court. The central evidence against the appellant consists of P.Ws. 1 and 2 who are close neighbours and who have been believed by the two courts. The evidence of these witnesses is corroborated by the conduct of the accused in producing the aruval (murder weapon) at the police station. It was argued by Mr. Fernandez that there was some discrepancy in the time when the F.I.R. was lodged. He relied on a statement of the Inspector that he came to the police station at 4.30 a.m., which according to him falsified the version of the prosecution that the F.I.R. was lodged at 2.30 a.m. We have perused the record and we feel that there is some confusion in this regard. According to the evidence of the Investigation Officer, he had reached the place of occurrence at 4.30 a.m. and he has also stated that he had received information of the occurrence at 2.30 a.m. It seems to us that the Sessions Judge instead of recording place of occurrence, wrote police station obviously by mistake, otherwise, the evidence of investigation officer becomes wholly unintelligible. It was then argued that there were other neighbours who were not examined by the prosecution. That, however, by itself is no ground to discredit the prosecution case. Finally, Mr. Fernandez pleaded on the question of sentence. It is, however, a case of unprovoked dastardly double murder and we feel that this was a fit case where the extreme penalty of death was rightly inflicted. The appellant was a spend-thrift. He killed not only his wife but also his father-in-law, who was his benefactor and had given shelter to him in his house. As many as 22 injuries were caused to the wife and 13 to the father-in-law, of whom some of them proved fatal. We, therefore, do not see any reason to reduce the sentence.
### Response:
0
### Explanation:
2. We have gone through the entire matter and heard Mr. S. J. S. Fernandez, counsel for the appellant. We are extremely grateful to Mr. S. J. S. Fernandez amicus curiae in this case and his arguments have been of very great assistance to us. We are, however, unable to find any error of law in the judgment of the High Court. The central evidence against the appellant consists of P.Ws. 1 and 2 who are close neighbours and who have been believed by the two courts. The evidence of these witnesses is corroborated by the conduct of the accused in producing the aruval (murder weapon) at the police station. It was argued by Mr. Fernandez that there was some discrepancy in the time when the F.I.R. was lodged. He relied on a statement of the Inspector that he came to the police station at 4.30 a.m., which according to him falsified the version of the prosecution that the F.I.R. was lodged at 2.30 a.m. We have perused the record and we feel that there is some confusion in this regard. According to the evidence of the Investigation Officer, he had reached the place of occurrence at 4.30 a.m. and he has also stated that he had received information of the occurrence at 2.30 a.m. It seems to us that the Sessions Judge instead of recording place of occurrence, wrote police station obviously by mistake, otherwise, the evidence of investigation officer becomes wholly unintelligible. It was then argued that there were other neighbours who were not examined by the prosecution. That, however, by itself is no ground to discredit the prosecution case. Finally, Mr. Fernandez pleaded on the question of sentence. It is, however, a case of unprovoked dastardly double murder and we feel that this was a fit case where the extreme penalty of death was rightly inflicted. The appellant was a. He killed not only his wife but also his, who was his benefactor and had given shelter to him in his house. As many as 22 injuries were caused to the wife and 13 to the, of whom some of them proved fatal. We, therefore, do not see any reason to reduce the sentence.
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Chiranji Lal Vs. Major Singh and Others | 1. This appeal is preferred by one Chiranhi Lal who is none other than the father of the deceased, namely, Chaman Lal on being aggrieved by the judgment of the High Court of Punjab and Haryana rendered in Criminal Appeal No. 558-DB of 1980 dated 20th July 1982 whereby the High Court acquitted both the respondents by setting aside the judgment of the trial court convicting the respondents under S. 302 read with S. 34, I.P.C. and Sections 201, 411, I.P.C. and sentencing thin to undergo imprisonment for life for major offence and for various terms of imprisonment for the rest of the offences 2. These two respondents took their trial under three heads on the allegations that on 13-7-79 in the area of Talwandi Sabo in furtherance of their common intention, caused the death of Chaman Lal and that in the course of the same transaction, they caused the evidence of that murder to disappear by throwing the dead body of Chaman Lal into the minor canal with the intention of screening themselves from legal punishment and that in the cause of same transaction, they also committed robbery of gold ornaments in the alternative they were in possession of the stolen property. The brief facts of the case which led to the prosecution can be summarised as follows. 3. The deceased Chaman Lal who was about 15 years at the time of the occurrence, was the son of Chiranji Lal, the appellant herein. It is the admitted case of the prosecution that he was a spendthrift. On an earlier occasion, he had left the village taking some jewels from the house. 4. The two respondents who belonged to the same village of the deceased, were the close friends of the deceased. There was yag ceremony in the village on 13-8-79 which went on up to 5 p.m. Chiranji Lal was very busy in that ceremony. These two respondents are stated to have lured Chaman Lal stating that they would get him married to a girl from Rajasthan. According to the prosecution, on that pretext they took away the boy. Chiranji Lal along with Kundan Lal searched the boy at various places but he could not trace the boy. On 24-8-79, Chiranji Lal found gold ornaments belonging to his wife, missing from his house. On the same day, he came to know the dead body of Chaman Lal lying in the area of Lalina. Chiranji Lal and his relations went there and found the dead body. The matter was reported to the village Sarpanch and thereafter a case was registered and the investigation was proceeded with. While it was so, one Talwandi Sabo is stated to have informed the father of the deceased on 2-9-79 that the deceased was found consuming liquor along with two other persons about 18-19 days before the occurrence at about 9-00 p.m. The police arrested both the appellants and recovered some ornaments. The prosecution has also led another piece of evidence that a glass tumbler seized from the scene of occurrence contained the finger prints of both the respondents. It was on the basis of the above evidence, the the prosecution attempted to substantiate the charges levelled against these respondents. The Trial Court accepting the evidence of the prosecution, convicted both the respondents as aforementioned. But on appeal, the High Court rejected the evidence adduced by the prosecution as unworthy of credence for the detailed discussions made and reasons given in its judgment and set aside the judgment of the trial court and acquitted the appellants. 5. The State has not preferred any appeal against the order of acquittal. But only the father of the victim has approached this Court. The High Court has pointed out the circumstantial evidence adduced by the prosecution against these two respondents, namely, the evidence of P.W. 12 speaking to the fact that these two respondents were found in the company of the deceased consuming liquor, the extra-judicial confession of one of the respondents, namely, Major Singh to P.W. 8 and the recovery of the ornaments and rejected the same as unworthy of acceptance. The reasons given by the High Court for its conclusion are sound and convincing. Hence, we find no ground to take a contrary view to that of the High Court. 6. It may not be out of place to mention here that the cause of death was not given by the medical officer obviously for the reasons the body was highly decomposed. But surprisingly, in the inquest report the cause of death is given as drowning and the body was found in mud-water. From whichever angle the case is looked at and examined, it cannot be said that the prosecution has satisfactorily established its charges against both the respondents. | 0[ds]5. The State has not preferred any appeal against the order of acquittal. But only the father of the victim has approached this Court. The High Court has pointed out the circumstantial evidence adduced by the prosecution against these two respondents, namely, the evidence of P.W. 12 speaking to the fact that these two respondents were found in the company of the deceased consuming liquor, theconfession of one of the respondents, namely, Major Singh to P.W. 8 and the recovery of the ornaments and rejected the same as unworthy of acceptance. The reasons given by the High Court for its conclusion are sound and convincing. Hence, we find no ground to take a contrary view to that of the HighIt may not be out of place to mention here that the cause of death was not given by the medical officer obviously for the reasons the body was highly decomposed. But surprisingly, in the inquest report the cause of death is given as drowning and the body was found inFrom whichever angle the case is looked at and examined, it cannot be said that the prosecution has satisfactorily established its charges against both the respondents | 0 | 861 | 216 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
1. This appeal is preferred by one Chiranhi Lal who is none other than the father of the deceased, namely, Chaman Lal on being aggrieved by the judgment of the High Court of Punjab and Haryana rendered in Criminal Appeal No. 558-DB of 1980 dated 20th July 1982 whereby the High Court acquitted both the respondents by setting aside the judgment of the trial court convicting the respondents under S. 302 read with S. 34, I.P.C. and Sections 201, 411, I.P.C. and sentencing thin to undergo imprisonment for life for major offence and for various terms of imprisonment for the rest of the offences 2. These two respondents took their trial under three heads on the allegations that on 13-7-79 in the area of Talwandi Sabo in furtherance of their common intention, caused the death of Chaman Lal and that in the course of the same transaction, they caused the evidence of that murder to disappear by throwing the dead body of Chaman Lal into the minor canal with the intention of screening themselves from legal punishment and that in the cause of same transaction, they also committed robbery of gold ornaments in the alternative they were in possession of the stolen property. The brief facts of the case which led to the prosecution can be summarised as follows. 3. The deceased Chaman Lal who was about 15 years at the time of the occurrence, was the son of Chiranji Lal, the appellant herein. It is the admitted case of the prosecution that he was a spendthrift. On an earlier occasion, he had left the village taking some jewels from the house. 4. The two respondents who belonged to the same village of the deceased, were the close friends of the deceased. There was yag ceremony in the village on 13-8-79 which went on up to 5 p.m. Chiranji Lal was very busy in that ceremony. These two respondents are stated to have lured Chaman Lal stating that they would get him married to a girl from Rajasthan. According to the prosecution, on that pretext they took away the boy. Chiranji Lal along with Kundan Lal searched the boy at various places but he could not trace the boy. On 24-8-79, Chiranji Lal found gold ornaments belonging to his wife, missing from his house. On the same day, he came to know the dead body of Chaman Lal lying in the area of Lalina. Chiranji Lal and his relations went there and found the dead body. The matter was reported to the village Sarpanch and thereafter a case was registered and the investigation was proceeded with. While it was so, one Talwandi Sabo is stated to have informed the father of the deceased on 2-9-79 that the deceased was found consuming liquor along with two other persons about 18-19 days before the occurrence at about 9-00 p.m. The police arrested both the appellants and recovered some ornaments. The prosecution has also led another piece of evidence that a glass tumbler seized from the scene of occurrence contained the finger prints of both the respondents. It was on the basis of the above evidence, the the prosecution attempted to substantiate the charges levelled against these respondents. The Trial Court accepting the evidence of the prosecution, convicted both the respondents as aforementioned. But on appeal, the High Court rejected the evidence adduced by the prosecution as unworthy of credence for the detailed discussions made and reasons given in its judgment and set aside the judgment of the trial court and acquitted the appellants. 5. The State has not preferred any appeal against the order of acquittal. But only the father of the victim has approached this Court. The High Court has pointed out the circumstantial evidence adduced by the prosecution against these two respondents, namely, the evidence of P.W. 12 speaking to the fact that these two respondents were found in the company of the deceased consuming liquor, the extra-judicial confession of one of the respondents, namely, Major Singh to P.W. 8 and the recovery of the ornaments and rejected the same as unworthy of acceptance. The reasons given by the High Court for its conclusion are sound and convincing. Hence, we find no ground to take a contrary view to that of the High Court. 6. It may not be out of place to mention here that the cause of death was not given by the medical officer obviously for the reasons the body was highly decomposed. But surprisingly, in the inquest report the cause of death is given as drowning and the body was found in mud-water. From whichever angle the case is looked at and examined, it cannot be said that the prosecution has satisfactorily established its charges against both the respondents.
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5. The State has not preferred any appeal against the order of acquittal. But only the father of the victim has approached this Court. The High Court has pointed out the circumstantial evidence adduced by the prosecution against these two respondents, namely, the evidence of P.W. 12 speaking to the fact that these two respondents were found in the company of the deceased consuming liquor, theconfession of one of the respondents, namely, Major Singh to P.W. 8 and the recovery of the ornaments and rejected the same as unworthy of acceptance. The reasons given by the High Court for its conclusion are sound and convincing. Hence, we find no ground to take a contrary view to that of the HighIt may not be out of place to mention here that the cause of death was not given by the medical officer obviously for the reasons the body was highly decomposed. But surprisingly, in the inquest report the cause of death is given as drowning and the body was found inFrom whichever angle the case is looked at and examined, it cannot be said that the prosecution has satisfactorily established its charges against both the respondents
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Malayalam Plantations Ltd Vs. State of Kerala & Another | as well as for the employees in the estates. 6. In view of the directions in the remand order, we are of the view that the High Court is not justified in relying on the earlier decision of this Court in Pullengode Rubber Produce (supra). As rightly pointed by Mr. Rao that after the order of remand with a specific direction, the same has no application to the facts of the present case. To this extent, we clarify the same. 7. It is not in dispute that when the appeals of the State as well as of the Malayalam Plantations were pending before the High Court, the State filed CMP No. 8793 of 2001 for accepting Annexures A1 to A21 in support of their claim stating that at the relevant time, the Company is in possession of an extent of 1199.3579 hectares of land other than plantation for ancillary purposes In the counter affidavit filed by the Plantations Company, the Company put forth their case and produced Annexure R1 in support of their stand claiming more extent of land for the use of their employees. 8. Mr. Gupta, learned Senior Counsel for the State by taking us through the various documents filed in the said CMP demonstrated that if we consider the contents of the same, the entire claim of the Malayalam Plantations is to be rejected. He further submitted that in view of the fact that Order 41 Rule 27 of CPC enables the parties to place documents in support of their claim as additional evidence, the High Court though adverted to did not consider the same and no order was passed in the said CMP No. 8793 of 2001. Mr. Rao pointed out that if this Court scrutinizes each and every document, the claim of the State is to be rejected in toto and the stand of the appellant is to be accepted. 9. We are not inclined to go into the validity or acceptability of those documents/materials filed by both sides before the High Court. Order 41 of CPC speaks about procedure in respect of disposal of appeals from original decree. Among various rules, we are concerned about Rule 27 which reads as under: 27. Production of additional evidence in Appellate Court—(a) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 10. In view of the above provision, in our opinion, when an application for reception of additional evidence under Order 41 Rule 27 of CPC was filed by the parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh & Anr. v. Mehar Singh & Ors., II (2010) SLT 334=I (2010) CLT 424 (SC)=AIR 2009 SC 354 and Shyam Gopal Bindal and Ors. v. Land Acquisition Officer and Anr., I (2010) SLT 183=I (2010) CLT 149 (SC)=(2010) 2 SCC 316 . 11. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41 Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. 12. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case. 13. In the light of the separate application filed under Order 41 Rule 27 of CPC for reception of additional evidence by both sides, it is for the High Court to consider and take a decision one way or other as to the applicability of the same and decide the appeal with reference to the said conclusion. In this view of the matter, we refrain from going into the merits of the materials placed by both sides and it is for the High Court to consider and take a decision one way or other as per the mandate of the said provision. | 1[ds]6. In view of the directions in the remand order, we are of the view that the High Court is not justified in relying on the earlier decision of this Court in Pullengode Rubber Produce (supra). As rightly pointed by Mr. Rao that after the order of remand with a specific direction, the same has no application to the facts of the present case. To this extent, we clarify the same7. It is not in dispute that when the appeals of the State as well as of the Malayalam Plantations were pending before the High Court, the State filed CMP No. 8793 of 2001 for accepting Annexures A1 to A21 in support of their claim stating that at the relevant time, the Company is in possession of an extent of 1199.3579 hectares of land other than plantation for ancillary purposes In the counter affidavit filed by the Plantations Company, the Company put forth their case and produced Annexure R1 in support of their stand claiming more extent of land for the use of their employees8. Mr. Gupta, learned Senior Counsel for the State by taking us through the various documents filed in the said CMP demonstrated that if we consider the contents of the same, the entire claim of the Malayalam Plantations is to be rejected. He further submitted that in view of the fact that Order 41 Rule 27 of CPC enables the parties to place documents in support of their claim as additional evidence, the High Court though adverted to did not consider the same and no order was passed in the said CMP No. 8793 of 2001. Mr. Rao pointed out that if this Court scrutinizes each and every document, the claim of the State is to be rejected in toto and the stand of the appellant is to be accepted9. We are not inclined to go into the validity or acceptability of those documents/materials filed by both sides before the High Court. Order 41 of CPC speaks about procedure in respect of disposal of appeals from original decree10. In view of the above provision, in our opinion, when an application for reception of additional evidence under Order 41 Rule 27 of CPC was filed by the parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh & Anr. v. Mehar Singh & Ors., II (2010) SLT 334=I (2010) CLT 424 (SC)=AIR 2009 SC 354 and Shyam Gopal Bindal and Ors. v. Land Acquisition Officer and Anr., I (2010) SLT 183=I (2010) CLT 149 (SC)=(2010) 2 SCC 316 11. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41 Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equallyd that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case12. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case13. In the light of the separate application filed under Order 41 Rule 27 of CPC for reception of additional evidence by both sides, it is for the High Court to consider and take a decision one way or other as to the applicability of the same and decide the appeal with reference to the said conclusion. In this view of the matter, we refrain from going into the merits of the materials placed by both sides and it is for the High Court to consider and take a decision one way or other as per the mandate of the said provision. | 1 | 3,203 | 886 | ### 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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as well as for the employees in the estates. 6. In view of the directions in the remand order, we are of the view that the High Court is not justified in relying on the earlier decision of this Court in Pullengode Rubber Produce (supra). As rightly pointed by Mr. Rao that after the order of remand with a specific direction, the same has no application to the facts of the present case. To this extent, we clarify the same. 7. It is not in dispute that when the appeals of the State as well as of the Malayalam Plantations were pending before the High Court, the State filed CMP No. 8793 of 2001 for accepting Annexures A1 to A21 in support of their claim stating that at the relevant time, the Company is in possession of an extent of 1199.3579 hectares of land other than plantation for ancillary purposes In the counter affidavit filed by the Plantations Company, the Company put forth their case and produced Annexure R1 in support of their stand claiming more extent of land for the use of their employees. 8. Mr. Gupta, learned Senior Counsel for the State by taking us through the various documents filed in the said CMP demonstrated that if we consider the contents of the same, the entire claim of the Malayalam Plantations is to be rejected. He further submitted that in view of the fact that Order 41 Rule 27 of CPC enables the parties to place documents in support of their claim as additional evidence, the High Court though adverted to did not consider the same and no order was passed in the said CMP No. 8793 of 2001. Mr. Rao pointed out that if this Court scrutinizes each and every document, the claim of the State is to be rejected in toto and the stand of the appellant is to be accepted. 9. We are not inclined to go into the validity or acceptability of those documents/materials filed by both sides before the High Court. Order 41 of CPC speaks about procedure in respect of disposal of appeals from original decree. Among various rules, we are concerned about Rule 27 which reads as under: 27. Production of additional evidence in Appellate Court—(a) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 10. In view of the above provision, in our opinion, when an application for reception of additional evidence under Order 41 Rule 27 of CPC was filed by the parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh & Anr. v. Mehar Singh & Ors., II (2010) SLT 334=I (2010) CLT 424 (SC)=AIR 2009 SC 354 and Shyam Gopal Bindal and Ors. v. Land Acquisition Officer and Anr., I (2010) SLT 183=I (2010) CLT 149 (SC)=(2010) 2 SCC 316 . 11. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41 Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. 12. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case. 13. In the light of the separate application filed under Order 41 Rule 27 of CPC for reception of additional evidence by both sides, it is for the High Court to consider and take a decision one way or other as to the applicability of the same and decide the appeal with reference to the said conclusion. In this view of the matter, we refrain from going into the merits of the materials placed by both sides and it is for the High Court to consider and take a decision one way or other as per the mandate of the said provision.
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6. In view of the directions in the remand order, we are of the view that the High Court is not justified in relying on the earlier decision of this Court in Pullengode Rubber Produce (supra). As rightly pointed by Mr. Rao that after the order of remand with a specific direction, the same has no application to the facts of the present case. To this extent, we clarify the same7. It is not in dispute that when the appeals of the State as well as of the Malayalam Plantations were pending before the High Court, the State filed CMP No. 8793 of 2001 for accepting Annexures A1 to A21 in support of their claim stating that at the relevant time, the Company is in possession of an extent of 1199.3579 hectares of land other than plantation for ancillary purposes In the counter affidavit filed by the Plantations Company, the Company put forth their case and produced Annexure R1 in support of their stand claiming more extent of land for the use of their employees8. Mr. Gupta, learned Senior Counsel for the State by taking us through the various documents filed in the said CMP demonstrated that if we consider the contents of the same, the entire claim of the Malayalam Plantations is to be rejected. He further submitted that in view of the fact that Order 41 Rule 27 of CPC enables the parties to place documents in support of their claim as additional evidence, the High Court though adverted to did not consider the same and no order was passed in the said CMP No. 8793 of 2001. Mr. Rao pointed out that if this Court scrutinizes each and every document, the claim of the State is to be rejected in toto and the stand of the appellant is to be accepted9. We are not inclined to go into the validity or acceptability of those documents/materials filed by both sides before the High Court. Order 41 of CPC speaks about procedure in respect of disposal of appeals from original decree10. In view of the above provision, in our opinion, when an application for reception of additional evidence under Order 41 Rule 27 of CPC was filed by the parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh & Anr. v. Mehar Singh & Ors., II (2010) SLT 334=I (2010) CLT 424 (SC)=AIR 2009 SC 354 and Shyam Gopal Bindal and Ors. v. Land Acquisition Officer and Anr., I (2010) SLT 183=I (2010) CLT 149 (SC)=(2010) 2 SCC 316 11. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41 Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equallyd that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case12. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case13. In the light of the separate application filed under Order 41 Rule 27 of CPC for reception of additional evidence by both sides, it is for the High Court to consider and take a decision one way or other as to the applicability of the same and decide the appeal with reference to the said conclusion. In this view of the matter, we refrain from going into the merits of the materials placed by both sides and it is for the High Court to consider and take a decision one way or other as per the mandate of the said provision.
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Vinod Kumar Chowdhry Vs. Narain Devi Taneja | make the Sub-section suffer from a constitutional invalidity. It is an accepted rule of interpretation that if a provision can be construed in a manner which upholds its legal or constitutional validity it should if possible be so construed rather than the other way round. We do feel that the language used is not happy but then it would not be doing violence to it if it is construed as just above stated. Secondly, the scheme of the Act and the object of the introduction of Section 14A and Chapter IIIA into it by the Amending Act make us form the opinion that Sub-section (8) of Section 25B is exhaustive of the rights of appeal and revision in relation to the proceedings held under that Chapter. Before the enforcement of the Amending Act. All disputes between a land-lord and his tenant were liable to be dealt with according to a uniform pro-cedure before the Controller as also in appeal and second appeal. No distinction was made between one kind of dispute and another. When it was felt that the procedure prescribed in the Act defeated, by reason of the delay involved, the very purpose of an application made under Clause (e) of the proviso to Sub-section (1) of Section 14, especially in the case of landlords who themselves held accommodation allotted by the Government or a local authority which they were required to vacate. Section 14A and Chapter III were introduced by the Amending Act so as to cut down the time-factor drastically, so much so that a tenant was required to obtain leave from the Controller for contesting an application for his eviction before he could put up his defence, and the Controller was given the power to refuse leave and straightway pass an order of eviction if he found that the grounds disclosed by the tenant in support of his right to dispute the landlord?s claim were not such as would disentitle the landlord from obtaining an order of eviction. Sub-section (7) further simplified the procedure on contest being allowed, even though Sub-section (2) of Section 37 itself provided for a procedure far simpler than ordinarily obtains in proceedings before a civil Court. Then there is Sub-section (8) which provides for the abolition of the right of appeal and second appeal and replaces it by a power in the High Court to revise an order passed by the Controller. That provision, as a part of the overall picture painted, must necessarily be construed as laying down procedure exclusive of that provided in Sections 38 and 39, and we hold that the four cases relied upon by the High Court in rejecting the contention raised on behalf of the tenant were correctly decided. 8. In the way of the above interpretation of Sub-section (8) of Sec-tion 25B, the provisions of Sub-section (10) thereof do not pose a hurdle. All that Sub-section (10) States is that the procedure for the disposal of an application for eviction covered by Sub-section (1) shall be the same as the procedure for disposal of other applications by Controllers, except as provided in Chapter IIIA. Sub-section (8) as interpreted by us governs an applica-tion covered by Sub-section (1) of Section 25B and expressly takes away the right of appeal or second appeal, while providing the remedy of revision instead. As we have held the provisions of Sub-section (8) to be exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications triable under Chapter IIIA, such applications fall outside the category of those which can be disposed of like other applications under-Sub-section (10) read with the provisions contained in other Chapters of the Act. 9. As a result of the above discussion we hold that the remedy of the landlady against the order of the Controller in the present case was by way of revision (and revision only) of that order by the High Court as laid down in the proviso to Sub-section (8) of Section 25B, even though it was an order not directing, but refusing, recovery of possession of the premises in dispute. 10. Another contention raised on behalf of the tenant was that the order passed by the High Court while revising that of the Controller was illegal inasmuch as it did not specifically contain a direction that the land-lady would not be entitled to obtain possession of the premises in dispute before the expiration of a period of six months from the date of the order. The contention seeks support from the provisions of Sub-section (7) of section 14 of the Act which states:?Where an order for the recovery of possession of any premises is made on the ground specified in Clause (e) of the proviso to Sub-section (1)the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order.? Now this Sub-section does not at all require that an order for the recovery of possession of any premises should contain a direction of the type above mentioned. On the other hand, the Sub-section itself declares that such an order would not be executable before a certain period has expired. The declaration is part of the law of the land and would be operative as such so that the landlady would not be entitled to execute the order made by the High Court in her favour before the expiry of six months from the date thereof notwithstanding the fact that the terms of Sub-section (7) have not been made a part of that order." 11. The only other ground urged in support of the appeal was that the landlady had prayed for the tenant?s eviction from only a part of the premises and that such eviction could not legally be granted to her. The contention embraces a question of fact which has been decided against the tenant by the High Court and for reconsidering which we do not find any reason. | 0[ds]Our reasons in this behalf are two-fold. Firstly, if an order in favour of the landlord alone was meant to be covered by Sub-section (8), an order refusing such relief would be liable to be called in question by way of an appeal or second appeal under Section 38 so that there would be two pro-cedures for the end-product of the Controller?s proceedings being called in question; one when the same is in favour of the landlord, and another whenit goes against him, which would obviously entail discrimination and make the Sub-section suffer from a constitutional invalidity. It is an accepted rule of interpretation that if a provision can be construed in a manner which upholds its legal or constitutional validity it should if possible be so construed rather than the other way round. We do feel that the language used is not happy but then it would not be doing violence to it if it is construed as just above statedSecondly, the scheme of the Act and the object of the introduction of Section 14A and Chapter IIIA into it by the Amending Act make us form the opinion that Sub-section (8) of Section 25B is exhaustive of the rights of appeal and revision in relation to the proceedings held under that Chapter. Before the enforcement of the Amending Act. All disputes between a land-lord and his tenant were liable to be dealt with according to a uniform pro-cedure before the Controller as also in appeal and second appeal. No distinction was made between one kind of dispute and another. When it was felt that the procedure prescribed in the Act defeated, by reason of the delay involved, the very purpose of an application made under Clause (e) of the proviso to Sub-section (1) of Section 14, especially in the case of landlords who themselves held accommodation allotted by the Government or a local authority which they were required to vacate. Section 14A and Chapter III were introduced by the Amending Act so as to cut down the time-factor drastically, so much so that a tenant was required to obtain leave from the Controller for contesting an application for his eviction before he could put up his defence, and the Controller was given the power to refuse leave and straightway pass an order of eviction if he found that the grounds disclosed by the tenant in support of his right to dispute the landlord?s claim were not such as would disentitle the landlord from obtaining an order of eviction. Sub-section (7) further simplified the procedure on contest being allowed, even though Sub-section (2) of Section 37 itself provided for a procedure far simpler than ordinarily obtains in proceedings before a civil Court. Then there is Sub-section (8) which provides for the abolition of the right of appeal and second appeal and replaces it by a power in the High Court to revise an order passed by the Controller. That provision, as a part of the overall picture painted, must necessarily be construed as laying down procedure exclusive of that provided in Sections 38 and 39, and we hold that the four cases relied upon by the High Court in rejecting the contention raised on behalf of the tenant were correctly decided8. In the way of the above interpretation of Sub-section (8) of Sec-tion 25B, the provisions of Sub-section (10) thereof do not pose a hurdle. All that Sub-section (10) States is that the procedure for the disposal of an application for eviction covered by Sub-section (1) shall be the same as the procedure for disposal of other applications by Controllers, except as provided in Chapter IIIA. Sub-section (8) as interpreted by us governs an applica-tion covered by Sub-section (1) of Section 25B and expressly takes away the right of appeal or second appeal, while providing the remedy of revision instead. As we have held the provisions of Sub-section (8) to be exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications triable under Chapter IIIA, such applications fall outside the category of those which can be disposed of like other applications under-Sub-section (10) read with the provisions contained in other Chapters of the Act9. As a result of the above discussion we hold that the remedy of the landlady against the order of the Controller in the present case was by way of revision (and revision only) of that order by the High Court as laid down in the proviso to Sub-section (8) of Section 25B, even though it was an order not directing, but refusing, recovery of possession of the premises in disputeNow this Sub-section does not at all require that an order for the recovery of possession of any premises should contain a direction of the type above mentioned. On the other hand, the Sub-section itself declares that such an order would not be executable before a certain period has expired. The declaration is part of the law of the land and would be operative as such so that the landlady would not be entitled to execute the order made by the High Court in her favour before the expiry of six months from the date thereof notwithstanding the fact that the terms of Sub-section (7) have not been made a part of that order. | 0 | 4,574 | 972 | ### Instruction:
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make the Sub-section suffer from a constitutional invalidity. It is an accepted rule of interpretation that if a provision can be construed in a manner which upholds its legal or constitutional validity it should if possible be so construed rather than the other way round. We do feel that the language used is not happy but then it would not be doing violence to it if it is construed as just above stated. Secondly, the scheme of the Act and the object of the introduction of Section 14A and Chapter IIIA into it by the Amending Act make us form the opinion that Sub-section (8) of Section 25B is exhaustive of the rights of appeal and revision in relation to the proceedings held under that Chapter. Before the enforcement of the Amending Act. All disputes between a land-lord and his tenant were liable to be dealt with according to a uniform pro-cedure before the Controller as also in appeal and second appeal. No distinction was made between one kind of dispute and another. When it was felt that the procedure prescribed in the Act defeated, by reason of the delay involved, the very purpose of an application made under Clause (e) of the proviso to Sub-section (1) of Section 14, especially in the case of landlords who themselves held accommodation allotted by the Government or a local authority which they were required to vacate. Section 14A and Chapter III were introduced by the Amending Act so as to cut down the time-factor drastically, so much so that a tenant was required to obtain leave from the Controller for contesting an application for his eviction before he could put up his defence, and the Controller was given the power to refuse leave and straightway pass an order of eviction if he found that the grounds disclosed by the tenant in support of his right to dispute the landlord?s claim were not such as would disentitle the landlord from obtaining an order of eviction. Sub-section (7) further simplified the procedure on contest being allowed, even though Sub-section (2) of Section 37 itself provided for a procedure far simpler than ordinarily obtains in proceedings before a civil Court. Then there is Sub-section (8) which provides for the abolition of the right of appeal and second appeal and replaces it by a power in the High Court to revise an order passed by the Controller. That provision, as a part of the overall picture painted, must necessarily be construed as laying down procedure exclusive of that provided in Sections 38 and 39, and we hold that the four cases relied upon by the High Court in rejecting the contention raised on behalf of the tenant were correctly decided. 8. In the way of the above interpretation of Sub-section (8) of Sec-tion 25B, the provisions of Sub-section (10) thereof do not pose a hurdle. All that Sub-section (10) States is that the procedure for the disposal of an application for eviction covered by Sub-section (1) shall be the same as the procedure for disposal of other applications by Controllers, except as provided in Chapter IIIA. Sub-section (8) as interpreted by us governs an applica-tion covered by Sub-section (1) of Section 25B and expressly takes away the right of appeal or second appeal, while providing the remedy of revision instead. As we have held the provisions of Sub-section (8) to be exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications triable under Chapter IIIA, such applications fall outside the category of those which can be disposed of like other applications under-Sub-section (10) read with the provisions contained in other Chapters of the Act. 9. As a result of the above discussion we hold that the remedy of the landlady against the order of the Controller in the present case was by way of revision (and revision only) of that order by the High Court as laid down in the proviso to Sub-section (8) of Section 25B, even though it was an order not directing, but refusing, recovery of possession of the premises in dispute. 10. Another contention raised on behalf of the tenant was that the order passed by the High Court while revising that of the Controller was illegal inasmuch as it did not specifically contain a direction that the land-lady would not be entitled to obtain possession of the premises in dispute before the expiration of a period of six months from the date of the order. The contention seeks support from the provisions of Sub-section (7) of section 14 of the Act which states:?Where an order for the recovery of possession of any premises is made on the ground specified in Clause (e) of the proviso to Sub-section (1)the landlord shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of the order.? Now this Sub-section does not at all require that an order for the recovery of possession of any premises should contain a direction of the type above mentioned. On the other hand, the Sub-section itself declares that such an order would not be executable before a certain period has expired. The declaration is part of the law of the land and would be operative as such so that the landlady would not be entitled to execute the order made by the High Court in her favour before the expiry of six months from the date thereof notwithstanding the fact that the terms of Sub-section (7) have not been made a part of that order." 11. The only other ground urged in support of the appeal was that the landlady had prayed for the tenant?s eviction from only a part of the premises and that such eviction could not legally be granted to her. The contention embraces a question of fact which has been decided against the tenant by the High Court and for reconsidering which we do not find any reason.
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Our reasons in this behalf are two-fold. Firstly, if an order in favour of the landlord alone was meant to be covered by Sub-section (8), an order refusing such relief would be liable to be called in question by way of an appeal or second appeal under Section 38 so that there would be two pro-cedures for the end-product of the Controller?s proceedings being called in question; one when the same is in favour of the landlord, and another whenit goes against him, which would obviously entail discrimination and make the Sub-section suffer from a constitutional invalidity. It is an accepted rule of interpretation that if a provision can be construed in a manner which upholds its legal or constitutional validity it should if possible be so construed rather than the other way round. We do feel that the language used is not happy but then it would not be doing violence to it if it is construed as just above statedSecondly, the scheme of the Act and the object of the introduction of Section 14A and Chapter IIIA into it by the Amending Act make us form the opinion that Sub-section (8) of Section 25B is exhaustive of the rights of appeal and revision in relation to the proceedings held under that Chapter. Before the enforcement of the Amending Act. All disputes between a land-lord and his tenant were liable to be dealt with according to a uniform pro-cedure before the Controller as also in appeal and second appeal. No distinction was made between one kind of dispute and another. When it was felt that the procedure prescribed in the Act defeated, by reason of the delay involved, the very purpose of an application made under Clause (e) of the proviso to Sub-section (1) of Section 14, especially in the case of landlords who themselves held accommodation allotted by the Government or a local authority which they were required to vacate. Section 14A and Chapter III were introduced by the Amending Act so as to cut down the time-factor drastically, so much so that a tenant was required to obtain leave from the Controller for contesting an application for his eviction before he could put up his defence, and the Controller was given the power to refuse leave and straightway pass an order of eviction if he found that the grounds disclosed by the tenant in support of his right to dispute the landlord?s claim were not such as would disentitle the landlord from obtaining an order of eviction. Sub-section (7) further simplified the procedure on contest being allowed, even though Sub-section (2) of Section 37 itself provided for a procedure far simpler than ordinarily obtains in proceedings before a civil Court. Then there is Sub-section (8) which provides for the abolition of the right of appeal and second appeal and replaces it by a power in the High Court to revise an order passed by the Controller. That provision, as a part of the overall picture painted, must necessarily be construed as laying down procedure exclusive of that provided in Sections 38 and 39, and we hold that the four cases relied upon by the High Court in rejecting the contention raised on behalf of the tenant were correctly decided8. In the way of the above interpretation of Sub-section (8) of Sec-tion 25B, the provisions of Sub-section (10) thereof do not pose a hurdle. All that Sub-section (10) States is that the procedure for the disposal of an application for eviction covered by Sub-section (1) shall be the same as the procedure for disposal of other applications by Controllers, except as provided in Chapter IIIA. Sub-section (8) as interpreted by us governs an applica-tion covered by Sub-section (1) of Section 25B and expressly takes away the right of appeal or second appeal, while providing the remedy of revision instead. As we have held the provisions of Sub-section (8) to be exhaustive of the remedies available to a person aggrieved by an order passed by the Controller in applications triable under Chapter IIIA, such applications fall outside the category of those which can be disposed of like other applications under-Sub-section (10) read with the provisions contained in other Chapters of the Act9. As a result of the above discussion we hold that the remedy of the landlady against the order of the Controller in the present case was by way of revision (and revision only) of that order by the High Court as laid down in the proviso to Sub-section (8) of Section 25B, even though it was an order not directing, but refusing, recovery of possession of the premises in disputeNow this Sub-section does not at all require that an order for the recovery of possession of any premises should contain a direction of the type above mentioned. On the other hand, the Sub-section itself declares that such an order would not be executable before a certain period has expired. The declaration is part of the law of the land and would be operative as such so that the landlady would not be entitled to execute the order made by the High Court in her favour before the expiry of six months from the date thereof notwithstanding the fact that the terms of Sub-section (7) have not been made a part of that order.
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Surya Mani Vs. State of Uttar Pradesh | were four punctured wounds and one contusion on the body of the deceased.4. The learned Sessions Judge relied on the evidence of the three eye-witnesses. It was urged before him, as before us, that Ram Khelawan did not know the accused before and, therefore, it was the duty of the prosecution to have put up the accused for a test identification by this witness. It appears that a number of applications were moved in this respect. Those applications are not printed on the record and as a matter of fact they were not even available when the case was argued before the High Court.5. It appears that on July 21, 1967, the appellant moved an application in the Court of A.D.M. (J), when he surrendered himself in the Court, and on this application the Public Prosecutor reported that since it was not clear from the First Information Report whether the accused was to be put up for identification he may be ordered to be made Baparda, and on the basis of this report the A.D.M. (J) ordered that the appellant should be made Baparda. On July 26, 1967, the appellant made an application that he be released on bail. In this application no request was made by the appellant that he be put up for identification. On August 3, 1967, S.O. Police Station Jethwara submitted a report to the A.D.M. (J) in which he stated that the appellant was named in the F.I.R. and the police did not want that he should be put up for identification. It was on October 6, 1967, that the accused for the first time moved an application before A.D.M. (J) stating that he had made an application on September 15, 1967, praying that he may be put up for test identification by Ram Khelawan, and that no orders had been passed on this application uptil then.6. The learned Sessions Judge perused the entire record of the lower Court but could not find any application on behalf of the accused presented to the learned Magistrate either on September 15, 1967 or on any other date prior to October 8, 1967, requesting that any test identification should be held. The learned Sessions Judge was satisfied that it was deliberately and wrongly stated that the appellant had moved an application on September 15, 1967.7. On the application of the accused, dated October 6, 1967, the Magistrate requested the District Magistrate that a Magistrate be deputed for holding identification proceedings of the accused. It was arranged that Shri Faujdar Singh would hold the parade on October 20, 1967, which date was later changed to October 27, 1967. On October 26, 1967, i.e., a day before the date fixed for identification, the appellant moved another application alleging that the police deliberately delayed the holding of the identification proceedings and that on the date of the application, i.e., October 26, 1967, the police succeeded in snatching away from his house his photograph, and, therefore, the appellant did not want to get his identification proceedings conducted. As a result the Magistrate ordered that the identification proceedings need not be held.8. On these facts the learned Sessions Judge came to the conclusion that the conduct of the accused was suspicious and the application had been made by him with some ulterior motive to gain advantage in the course of the trial. The learned Sessions Judge was also satisfied that the appellant was known to Ram Khelawan from before.9. When the appeal was argued before the High Court the papers pertaining to the application were not traceable. It was urged before the High Court that the records had been removed deliberately. The High Court did not accept this plea and came to the conclusion that it was clear that Ram Khelawan knew the appellant beforehand and therefore no importance should be attached to the non-holding of the identification proceedings.10. The learned counsel for the appellant, Mr. S. P. Sinha, brought to our attention the fact the a question was put to S. O. Ram Narain, P.W. 9, about the recovery of the photo of the accused from his verandah, and he had replied that "it is wrong to say that I recovered the photo of the accused from his verandah and for that reason the accused did not get his identification conducted".11. Ram Khelawan, in his examination-in-Chief had stated that he knew the appellant but he did not know Mahadei, deceased. In cross-examination he stated :"I knew the accused from before. I did not know Mahadei. The accused was not on visiting terms with me. The accused did not pay visits to me, either. The accused himself once told me his name. He told me, his name was Kallan. Thereafter I had seen him several times in the Chakbandi Court."12. We see no reason to differ from the finding of the High Court that Ram Khelawan knew the appellant from before. The High Court also found Ram Khelawan a disinterested person and not connected with the local disputes. To make sure that it could act upon the testimony of Ram Khelawan, the High court summoned him for further cross-examination, which convinced the High Court that Ram Khelawan was an independent witness and he was not on bad terms with the appellant.13. Regarding the evidence of Nanku, P.W. 1, and Bachai, P.W. 4, the High Court observed that it would not be safe to act fully upon their evidence but that their testimony could be used to corroborate the other evidence.14. This is an appeal by special leave and there are concurrent findings of the two Courts below that Ram Khelawan is a trustworthy witness. Nothing has been brought out before us why we should differ from the Courts below.15. Finally the learned counsel said that in the circumstances the sentence of death was not appropriate. Nothing has been brought out why we should interfere in a special leave with the sentence imposed by the learned Sessions Judge and confirmed by the High Court. | 0[ds]12. We see no reason to differ from the finding of the High Court that Ram Khelawan knew the appellant from before. The High Court also found Ram Khelawan a disinterested person and not connected with the local disputes. To make sure that it could act upon the testimony of Ram Khelawan, the High court summoned him for furtherwhich convinced the High Court that Ram Khelawan was an independent witness and he was not on bad terms with the appellant.13. Regarding the evidence of Nanku, P.W. 1, and Bachai, P.W. 4, the High Court observed that it would not be safe to act fully upon their evidence but that their testimony could be used to corroborate the other evidence.14. This is an appeal by special leave and there are concurrent findings of the two Courts below that Ram Khelawan is a trustworthy witness. Nothing has been brought out before us why we should differ from the Courts below.15.Finally the learned counsel said that in the circumstances the sentence of death was not appropriate.Nothing has been brought out why we should interfere in a special leave with the sentence imposed by the learned Sessions Judge and confirmed by the High Court. | 0 | 1,335 | 218 | ### Instruction:
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were four punctured wounds and one contusion on the body of the deceased.4. The learned Sessions Judge relied on the evidence of the three eye-witnesses. It was urged before him, as before us, that Ram Khelawan did not know the accused before and, therefore, it was the duty of the prosecution to have put up the accused for a test identification by this witness. It appears that a number of applications were moved in this respect. Those applications are not printed on the record and as a matter of fact they were not even available when the case was argued before the High Court.5. It appears that on July 21, 1967, the appellant moved an application in the Court of A.D.M. (J), when he surrendered himself in the Court, and on this application the Public Prosecutor reported that since it was not clear from the First Information Report whether the accused was to be put up for identification he may be ordered to be made Baparda, and on the basis of this report the A.D.M. (J) ordered that the appellant should be made Baparda. On July 26, 1967, the appellant made an application that he be released on bail. In this application no request was made by the appellant that he be put up for identification. On August 3, 1967, S.O. Police Station Jethwara submitted a report to the A.D.M. (J) in which he stated that the appellant was named in the F.I.R. and the police did not want that he should be put up for identification. It was on October 6, 1967, that the accused for the first time moved an application before A.D.M. (J) stating that he had made an application on September 15, 1967, praying that he may be put up for test identification by Ram Khelawan, and that no orders had been passed on this application uptil then.6. The learned Sessions Judge perused the entire record of the lower Court but could not find any application on behalf of the accused presented to the learned Magistrate either on September 15, 1967 or on any other date prior to October 8, 1967, requesting that any test identification should be held. The learned Sessions Judge was satisfied that it was deliberately and wrongly stated that the appellant had moved an application on September 15, 1967.7. On the application of the accused, dated October 6, 1967, the Magistrate requested the District Magistrate that a Magistrate be deputed for holding identification proceedings of the accused. It was arranged that Shri Faujdar Singh would hold the parade on October 20, 1967, which date was later changed to October 27, 1967. On October 26, 1967, i.e., a day before the date fixed for identification, the appellant moved another application alleging that the police deliberately delayed the holding of the identification proceedings and that on the date of the application, i.e., October 26, 1967, the police succeeded in snatching away from his house his photograph, and, therefore, the appellant did not want to get his identification proceedings conducted. As a result the Magistrate ordered that the identification proceedings need not be held.8. On these facts the learned Sessions Judge came to the conclusion that the conduct of the accused was suspicious and the application had been made by him with some ulterior motive to gain advantage in the course of the trial. The learned Sessions Judge was also satisfied that the appellant was known to Ram Khelawan from before.9. When the appeal was argued before the High Court the papers pertaining to the application were not traceable. It was urged before the High Court that the records had been removed deliberately. The High Court did not accept this plea and came to the conclusion that it was clear that Ram Khelawan knew the appellant beforehand and therefore no importance should be attached to the non-holding of the identification proceedings.10. The learned counsel for the appellant, Mr. S. P. Sinha, brought to our attention the fact the a question was put to S. O. Ram Narain, P.W. 9, about the recovery of the photo of the accused from his verandah, and he had replied that "it is wrong to say that I recovered the photo of the accused from his verandah and for that reason the accused did not get his identification conducted".11. Ram Khelawan, in his examination-in-Chief had stated that he knew the appellant but he did not know Mahadei, deceased. In cross-examination he stated :"I knew the accused from before. I did not know Mahadei. The accused was not on visiting terms with me. The accused did not pay visits to me, either. The accused himself once told me his name. He told me, his name was Kallan. Thereafter I had seen him several times in the Chakbandi Court."12. We see no reason to differ from the finding of the High Court that Ram Khelawan knew the appellant from before. The High Court also found Ram Khelawan a disinterested person and not connected with the local disputes. To make sure that it could act upon the testimony of Ram Khelawan, the High court summoned him for further cross-examination, which convinced the High Court that Ram Khelawan was an independent witness and he was not on bad terms with the appellant.13. Regarding the evidence of Nanku, P.W. 1, and Bachai, P.W. 4, the High Court observed that it would not be safe to act fully upon their evidence but that their testimony could be used to corroborate the other evidence.14. This is an appeal by special leave and there are concurrent findings of the two Courts below that Ram Khelawan is a trustworthy witness. Nothing has been brought out before us why we should differ from the Courts below.15. Finally the learned counsel said that in the circumstances the sentence of death was not appropriate. Nothing has been brought out why we should interfere in a special leave with the sentence imposed by the learned Sessions Judge and confirmed by the High Court.
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12. We see no reason to differ from the finding of the High Court that Ram Khelawan knew the appellant from before. The High Court also found Ram Khelawan a disinterested person and not connected with the local disputes. To make sure that it could act upon the testimony of Ram Khelawan, the High court summoned him for furtherwhich convinced the High Court that Ram Khelawan was an independent witness and he was not on bad terms with the appellant.13. Regarding the evidence of Nanku, P.W. 1, and Bachai, P.W. 4, the High Court observed that it would not be safe to act fully upon their evidence but that their testimony could be used to corroborate the other evidence.14. This is an appeal by special leave and there are concurrent findings of the two Courts below that Ram Khelawan is a trustworthy witness. Nothing has been brought out before us why we should differ from the Courts below.15.Finally the learned counsel said that in the circumstances the sentence of death was not appropriate.Nothing has been brought out why we should interfere in a special leave with the sentence imposed by the learned Sessions Judge and confirmed by the High Court.
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C.S. Rowjee, Represented by Power of Attorney holder C. Apparao Rowjee & Others Vs. Andhra Pradesh State Road Transport Corporation | Regional Transport Authority and that Authority is directed to grant the permit to the Undertaking notwithstanding anything to the contrary in Ch. IV. In accordance with the provisions of this section the State Road Transport Corporation made an application for the grant of permits to the Regional Transport Authority. The objection raised is that the application had to be made not to the Regional Transport authority but only to the State Transport Authority which Authority alone, it is urged, is competent to entertain applications for the grant of permits where the length of the route is 100 miles or over and such route is over a Trunk Road. Three of the routes in Scheme 2 with which Civil Appeals Nos. 773, 776 and 777 are concerned are of a length beyond 100 miles and the road way on which the route lies are admittedly Trunk Roads. Under R. 141 of the Madras Motor Vehicles Act Rules permits on routes covering a distance of over 100 rules on Trunk Roads could be granted only by the State Transport Authority. It was this Authority that had granted the permits to operate on these three routes to the respective appellants in these appeals. The argument is that even when a Transport Undertaking applies for a Stage Carriage permit under S. 68-F(1) it must comply with the provisions of R. 142. On the basis of this reasoning the appellants in these three Civil Appeals have applied for a writ of prohibition against the Regional Transport Authority before whom the applications have been filed. Section 68-F(1) reads :"68-F (1) Where, in pursuance of an approved scheme, any Stage transport undertaking applies in the manner specified in Ch. IV for a stage carriage permit or a public carriers permit or a contract carriage permit in respect of a notified area or notified route, the Regional Transport Authority shall issue such permit to the State transport undertaking, notwithstanding anything to the contrary contained in Chapter IV."The learned Judges of the High Court have held the Regional Transport Authority which is specifically mentioned in S. 68-F(1) is empowered to issue the permit to the transport undertaking "notwithstanding anything to the contrary contained in Ch. IV" rendered the provisions of R. 141 of the Motor Vehicles Rules inapplicable to cases covered by S. 68-F (1). We find ourselves in agreement with this view, Besides, S. 68-B of the Act enacts :"68-B. The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any law for the time being in force or in any instrument having effect by virtue of any such law."Therefore any provisions in Chapter IV which are inconsistent with those contained in Chapter IV-A would to that extent be superseded. No doubt, S. 68-F(1) speaks of an application in the manner specified in Ch. IV which if the words stood alone are capable of being understood as meaning the authority to whom the application has to be made, but as the authority to issue the permit in pursuance of the application is specified as the Regional Transport Authority and as that authority is directed to issue the permit notwithstanding anything in Ch. IV so much of Ch. IV or the Rules made thereunder, which specify the authority to grant the permit as being someone other than the Regional Transport Authority, is to that extent superseded. It was pointed out that under Rule 141 the State Transport Authority was itself vested with the power of the Regional Transport Authority where the route was of the description mentioned earlier, but this in our opinion, makes no difference. No doubt, in a State where there is no Regional Transport Authority at all (vide e.g. proviso to Section 44 (1)), but there is some other authority which functions as the Regional Transport Authority for the purpose of the Act, such an Authority might be that which would be comprehended by Section 68-F(1) but where as in Andhra Pradesh there is admittedly a Regional Transport Authority, we cannot accede to the submission that such authority is deprived of the power to issue a permit by reason of S. 68-F (1) merely because the Regional Transport Authority of that area cannot grant permits under Ch. IV.41. There were certain other points urged in Civil Appeal No. 771 which arose only if the Regional Transport Authority to whom applications under S. 68-F(1) were made, was not competent to entertain application and issue a permit. In view of our conclusion as regards the point urged in Civil Appeal No. 771 of 1963 do not arise.42. There remains for being dealt with one minor point which was urge in Civil Appeals Nos. 883 and 884 which we consider entirely without substance. The point was that the description of the route in the Scheme was too vague and misleading, so much so the appellants did not file their objections before the Government. Taking the case of the Civil Appeal No. 883, it is by an operator who runs a service from Uravakonda to Adoni, Serial No. 16 of scheme No. 1 describes the route as Adoni to Uravakonda. It was urged that as the scheme notified the route Adoni to Uravakonda but not Uravakonda to Adoni, the appellant thought that his route was not affected. The objection is on its very face frivolous because throughout the Scheme, it is only the terminal points that are specified and that specification carried with it and obviously implies that the operation of transport between the two termini is intended to be nationalised. The compliant in Civil Appeal No. 884 is the same, only the route is different. This completes all the points that are urged before us.43. In view of our conclusion that the schemes are vitiated by non-compliance with the requirements of S. 68-C and the Rules made thereunder, we hold that they have to be quashed as not warranted by law. | 1[ds]28. We have given the matter our best consideration, but we are unable to agree with the learned Judges of the High Court in their conclusion. The first matter which stands out prominently in this connection is the element of time and the sequence of dates. We have already pointed out that the Corporation had as late as March, 1962 considered the entire subject and had accepted the recommendation of the Anantharamakrishnan Committee as to the order in which the transport in the several districts should be nationalised and had set these out in their Administration Report for the three year period 1958 to 1961. It must, therefore, be taken that every factor which the Anantharamakrishnan Committee had considered relevant and material for determining the order of the districts had been independently investigated, examined and concurred in, before those recommendations were approved. It means that upto March-April, 1962 a consideration of all the relevant factors had led the Corporation it a conclusion identical with that of the Anantharamakrishnan Committee. The next thing that happened was a conference of the Corporation and its officials with the Chief Minister on April 19, 1962. The proceedings of the Conference are not on the record nor is there any evidence as to whether any record was made of what happened at the conference. But we have the statement of the Chief Minister made on the floor of the State Assembly in which he gave an account of what transpired between him and the Corporation and its officials. We have already extracted the relevant portions of that speech from which the following points emerge: (1) that the Chief Minister claimed a right to lay down rules of policy for the guidance of the Corporation and, in fact, the learned Advocate-General submitted to us that underthe Road Transport Corporation Act, 1950, the Government had a right to give directions as to policy to the Corporation; (2) that the policy direction that he gave related to and included the order in which the districts should be taken up for nationalisation; and (3) that applying the criteria that the districts to be nationalised should be contiguous to those in which nationalised services already existed, Kurnool answered this test better than Chittor and he applying the tests he laid down, therefore suggested that instead of Chittor, Kurnool should be taken up next. One matter that emerges from this is that it was as a result of policy decision taken by the Chief Minister and the direction given to the Corporation that Kurnool was taken up for nationalisation next after Guntur. It is also to be noticed, that if the direction by the Chief Minister, was a policy decision, the Corporation was under the law bound to give effect to it. (vide S. 34 ofthe Road Transport Corporation Act, 1950). We are not here concerned with the question whether a policy decision contemplated by S. 34 of the Road transport Act could relate to a matter which under S. 68-C of the Act is left to the unfettered discretion and judgment of the Corporation, where that is the State undertaking, or again whether or not the policy decision has to be by a formal Government order in writing for what is relevant is whether the materials placed before the Court establish that the Corporation gave effect to it as a direction which they were expected to and did obey. If the Chief Minister was impelled by motives of personal ill-will against the Road Transport Operators in the western part of Kurnool and he gave the direction to the Corporation to change the order of the districts as originally planned by them and instead taken up Kurnool first in order to prejudicially affect his political opponents and the Corporation carried out his directions it does not need much argument to show that the resultant Scheme framed by the Corporation would also be vitiated by mala fides notwithstanding the interposition of the semi-autonomousargument proceeds from the circumstances that even taking it that the Chief Minister directed the Corporation to take up the nationalisation of the routes in the first instance, there was no allegation, that he gave any direction regarding the area in the district and the routes. We fail to see any force in this argument. If the choice of the district was that of the Chief Minister, the fact that within the area of the district pointed out to them, the Corporation selected some area with in the district and the routes within that area, cannot on any reasonable construction of Section 68-C be a sufficient compliance with the statute. We are disposed to read the word area in the section as meaning such area in the entire State as the Corporation should consider proper and not as the learned Advocate General would read as area within a circumscribed part of the State determined by an outside authority.32. Besides, there is really little or no explanation forthcoming from the Corporation for choosing the western part of the Kurnool district for the exclusion of the private operators in the first instance. The principal allegation regarding mala fides on the part of the Chief Minister made by the appellants was directed to demonstrate that the object of the present schemes was to eliminate operators whose routes lay on the western side of the district. It is also stated in the affidavit that the friends or supporters of the Chief Minister were operating motor transport in the eastern part of Kurnool. Therefore it might be expected that the counter affidavits filed offered a rational explanation as to why his portion of the Kurnool district was chosen in the first instance in preference to the other portion of the district. Needless to say the resolution of the Corporation of May 4, 1962, officers no assistance in this matter as we have said earlier though the counter-affidavits contained a denial of the allegation that the Corporation was acting at the behest of the Chief Minister, there is no explanation for the choice of the western portion.Our conclusion therefore is that the impugned schemes are vitiated by the fact that they were not in conformity with the requirements of S.regard to this, however, two matters have to be remembered. The first is that there is nothing on the record to show that the Chief Minister influenced his colleague and beyond the fact that both the Chief Minister as well as the Transport Minister are members of the same Council of Ministers, there is nothing to indicate that the Chief Minister influenced the Transport Minister. The other matter is that the Transport Minister has stated on oath that in considering the objections under Section 66-D (3) and approving the Schemes he was uninfluenced by the Chief Minister. We, therefore, consider that there is no basis for holding that the Transport Ministers approval of the schemes does not satisfy the requirements of the law.34. In the view that we taken the Schemes have to be set aside as not in conformity with S. 68-C of the Act, the other objections raised do not require consideration but in view, however, of the arguments addressed to us on them we shall briefly deal with them.In the case before us in view of the conclusion we have reached that some of the conclusion we have reached that some of the variations between the maxima and the minima in the number of vehicles proposed to be operated on each route are such as adopting the test suggested by the learned Advocate-General himself, to really contravene R. 4 we have not thought it necessary to finally decide the larger question, whether the mere prescription of the maxima and minima, particularly for the reasons set out in the affidavit of the Assistant Secretary to the Transport Department, constitutes a violation of S. 68-E as also of R. 4 of the Motor Vehicles Rules, 1957 as to require the same to be struck down. We might, however, mention in passing that we are not much impressed by the argument based on Ss. 46 and 48. It must be remembered that we are concerned with a requirement of Ch. IV-A and under S. 68-B of the Act, not only the provisions of that Chapter but the rules made thereunder are to have effect notwithstanding anything in Ch. IV in which S. 46 and S. 48 occur. This apart, the rule-making authority had the analogy of the provisions of Ss. 46 and 48 before it, but yet chose not to adopt the same phraseology as was employed in these sections. Besides, as the provisions of Ch. IV-A made the rights of private operators to carry on business and are justified as a reasonable restriction on their rights in public interest, it might very well have been considered that a more precise indication should be afforded by the scheme to enable its adequacy to be tested by the quasi-judicial procedure which has to be followed before the scheme becomes effective. However, as stated already, there is no need to decide this matter finally in view of our conclusion that the scheme contravenes R. 4 even on the test submitted by the Advocate General. In saying this we have in mind routes 15, 16, 18 and 20 of Scheme No. 1 in which the variation in the number of vehicles is 1 to 3, 1 to 4 and 3 to 8 and similarly in Scheme No. 2 Route No. 1 where the variation is 6 to 12 and in Scheme No. 3 route No. 1 the variation is 5 to 9. We might mention that we have taken into account not merely the proposition but the variation in the number. We have set these out as merely illustrative and we have not thought it necessary to make an exhaustive list of allany provisions in Chapter IV which are inconsistent with those contained in Chapter IV-A would to that extent be superseded. No doubt, S. 68-F(1) speaks of an application in the manner specified in Ch. IV which if the words stood alone are capable of being understood as meaning the authority to whom the application has to be made, but as the authority to issue the permit in pursuance of the application is specified as the Regional Transport Authority and as that authority is directed to issue the permit notwithstanding anything in Ch. IV so much of Ch. IV or the Rules made thereunder, which specify the authority to grant the permit as being someone other than the Regional Transport Authority, is to that extent superseded. It was pointed out that under Rule 141 the State Transport Authority was itself vested with the power of the Regional Transport Authority where the route was of the description mentioned earlier, but this in our opinion, makes no difference. No doubt, in a State where there is no Regional Transport Authority at all (vide e.g. proviso to Section 44 (1)), but there is some other authority which functions as the Regional Transport Authority for the purpose of the Act, such an Authority might be that which would be comprehended by Section 68-F(1) but where as in Andhra Pradesh there is admittedly a Regional Transport Authority, we cannot accede to the submission that such authority is deprived of the power to issue a permit by reason of S. 68-F (1) merely because the Regional Transport Authority of that area cannot grant permits under Ch. IV.There remains for being dealt with one minor point which was urge in Civil Appeals Nos. 883 and 884 which we consider entirely without substance. The point was that the description of the route in the Scheme was too vague and misleading, so much so the appellants did not file their objections before the Government. Taking the case of the Civil Appeal No. 883, it is by an operator who runs a service from Uravakonda to Adoni, Serial No. 16 of scheme No. 1 describes the route as Adoni to Uravakonda. It was urged that as the scheme notified the route Adoni to Uravakonda but not Uravakonda to Adoni, the appellant thought that his route was not affected. The objection is on its very face frivolous because throughout the Scheme, it is only the terminal points that are specified and that specification carried with it and obviously implies that the operation of transport between the two termini is intended to be nationalised. The compliant in Civil Appeal No. 884 is the same, only the route is different. This completes all the points that are urged before us.43. In view of our conclusion that the schemes are vitiated by non-compliance with the requirements of S. 68-C and the Rules made thereunder, we hold that they have to be quashed as not warranted by law. | 1 | 13,229 | 2,303 | ### Instruction:
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Regional Transport Authority and that Authority is directed to grant the permit to the Undertaking notwithstanding anything to the contrary in Ch. IV. In accordance with the provisions of this section the State Road Transport Corporation made an application for the grant of permits to the Regional Transport Authority. The objection raised is that the application had to be made not to the Regional Transport authority but only to the State Transport Authority which Authority alone, it is urged, is competent to entertain applications for the grant of permits where the length of the route is 100 miles or over and such route is over a Trunk Road. Three of the routes in Scheme 2 with which Civil Appeals Nos. 773, 776 and 777 are concerned are of a length beyond 100 miles and the road way on which the route lies are admittedly Trunk Roads. Under R. 141 of the Madras Motor Vehicles Act Rules permits on routes covering a distance of over 100 rules on Trunk Roads could be granted only by the State Transport Authority. It was this Authority that had granted the permits to operate on these three routes to the respective appellants in these appeals. The argument is that even when a Transport Undertaking applies for a Stage Carriage permit under S. 68-F(1) it must comply with the provisions of R. 142. On the basis of this reasoning the appellants in these three Civil Appeals have applied for a writ of prohibition against the Regional Transport Authority before whom the applications have been filed. Section 68-F(1) reads :"68-F (1) Where, in pursuance of an approved scheme, any Stage transport undertaking applies in the manner specified in Ch. IV for a stage carriage permit or a public carriers permit or a contract carriage permit in respect of a notified area or notified route, the Regional Transport Authority shall issue such permit to the State transport undertaking, notwithstanding anything to the contrary contained in Chapter IV."The learned Judges of the High Court have held the Regional Transport Authority which is specifically mentioned in S. 68-F(1) is empowered to issue the permit to the transport undertaking "notwithstanding anything to the contrary contained in Ch. IV" rendered the provisions of R. 141 of the Motor Vehicles Rules inapplicable to cases covered by S. 68-F (1). We find ourselves in agreement with this view, Besides, S. 68-B of the Act enacts :"68-B. The provisions of this Chapter and the rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any law for the time being in force or in any instrument having effect by virtue of any such law."Therefore any provisions in Chapter IV which are inconsistent with those contained in Chapter IV-A would to that extent be superseded. No doubt, S. 68-F(1) speaks of an application in the manner specified in Ch. IV which if the words stood alone are capable of being understood as meaning the authority to whom the application has to be made, but as the authority to issue the permit in pursuance of the application is specified as the Regional Transport Authority and as that authority is directed to issue the permit notwithstanding anything in Ch. IV so much of Ch. IV or the Rules made thereunder, which specify the authority to grant the permit as being someone other than the Regional Transport Authority, is to that extent superseded. It was pointed out that under Rule 141 the State Transport Authority was itself vested with the power of the Regional Transport Authority where the route was of the description mentioned earlier, but this in our opinion, makes no difference. No doubt, in a State where there is no Regional Transport Authority at all (vide e.g. proviso to Section 44 (1)), but there is some other authority which functions as the Regional Transport Authority for the purpose of the Act, such an Authority might be that which would be comprehended by Section 68-F(1) but where as in Andhra Pradesh there is admittedly a Regional Transport Authority, we cannot accede to the submission that such authority is deprived of the power to issue a permit by reason of S. 68-F (1) merely because the Regional Transport Authority of that area cannot grant permits under Ch. IV.41. There were certain other points urged in Civil Appeal No. 771 which arose only if the Regional Transport Authority to whom applications under S. 68-F(1) were made, was not competent to entertain application and issue a permit. In view of our conclusion as regards the point urged in Civil Appeal No. 771 of 1963 do not arise.42. There remains for being dealt with one minor point which was urge in Civil Appeals Nos. 883 and 884 which we consider entirely without substance. The point was that the description of the route in the Scheme was too vague and misleading, so much so the appellants did not file their objections before the Government. Taking the case of the Civil Appeal No. 883, it is by an operator who runs a service from Uravakonda to Adoni, Serial No. 16 of scheme No. 1 describes the route as Adoni to Uravakonda. It was urged that as the scheme notified the route Adoni to Uravakonda but not Uravakonda to Adoni, the appellant thought that his route was not affected. The objection is on its very face frivolous because throughout the Scheme, it is only the terminal points that are specified and that specification carried with it and obviously implies that the operation of transport between the two termini is intended to be nationalised. The compliant in Civil Appeal No. 884 is the same, only the route is different. This completes all the points that are urged before us.43. In view of our conclusion that the schemes are vitiated by non-compliance with the requirements of S. 68-C and the Rules made thereunder, we hold that they have to be quashed as not warranted by law.
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there is no basis for holding that the Transport Ministers approval of the schemes does not satisfy the requirements of the law.34. In the view that we taken the Schemes have to be set aside as not in conformity with S. 68-C of the Act, the other objections raised do not require consideration but in view, however, of the arguments addressed to us on them we shall briefly deal with them.In the case before us in view of the conclusion we have reached that some of the conclusion we have reached that some of the variations between the maxima and the minima in the number of vehicles proposed to be operated on each route are such as adopting the test suggested by the learned Advocate-General himself, to really contravene R. 4 we have not thought it necessary to finally decide the larger question, whether the mere prescription of the maxima and minima, particularly for the reasons set out in the affidavit of the Assistant Secretary to the Transport Department, constitutes a violation of S. 68-E as also of R. 4 of the Motor Vehicles Rules, 1957 as to require the same to be struck down. We might, however, mention in passing that we are not much impressed by the argument based on Ss. 46 and 48. It must be remembered that we are concerned with a requirement of Ch. IV-A and under S. 68-B of the Act, not only the provisions of that Chapter but the rules made thereunder are to have effect notwithstanding anything in Ch. IV in which S. 46 and S. 48 occur. This apart, the rule-making authority had the analogy of the provisions of Ss. 46 and 48 before it, but yet chose not to adopt the same phraseology as was employed in these sections. Besides, as the provisions of Ch. IV-A made the rights of private operators to carry on business and are justified as a reasonable restriction on their rights in public interest, it might very well have been considered that a more precise indication should be afforded by the scheme to enable its adequacy to be tested by the quasi-judicial procedure which has to be followed before the scheme becomes effective. However, as stated already, there is no need to decide this matter finally in view of our conclusion that the scheme contravenes R. 4 even on the test submitted by the Advocate General. In saying this we have in mind routes 15, 16, 18 and 20 of Scheme No. 1 in which the variation in the number of vehicles is 1 to 3, 1 to 4 and 3 to 8 and similarly in Scheme No. 2 Route No. 1 where the variation is 6 to 12 and in Scheme No. 3 route No. 1 the variation is 5 to 9. We might mention that we have taken into account not merely the proposition but the variation in the number. We have set these out as merely illustrative and we have not thought it necessary to make an exhaustive list of allany provisions in Chapter IV which are inconsistent with those contained in Chapter IV-A would to that extent be superseded. No doubt, S. 68-F(1) speaks of an application in the manner specified in Ch. IV which if the words stood alone are capable of being understood as meaning the authority to whom the application has to be made, but as the authority to issue the permit in pursuance of the application is specified as the Regional Transport Authority and as that authority is directed to issue the permit notwithstanding anything in Ch. IV so much of Ch. IV or the Rules made thereunder, which specify the authority to grant the permit as being someone other than the Regional Transport Authority, is to that extent superseded. It was pointed out that under Rule 141 the State Transport Authority was itself vested with the power of the Regional Transport Authority where the route was of the description mentioned earlier, but this in our opinion, makes no difference. No doubt, in a State where there is no Regional Transport Authority at all (vide e.g. proviso to Section 44 (1)), but there is some other authority which functions as the Regional Transport Authority for the purpose of the Act, such an Authority might be that which would be comprehended by Section 68-F(1) but where as in Andhra Pradesh there is admittedly a Regional Transport Authority, we cannot accede to the submission that such authority is deprived of the power to issue a permit by reason of S. 68-F (1) merely because the Regional Transport Authority of that area cannot grant permits under Ch. IV.There remains for being dealt with one minor point which was urge in Civil Appeals Nos. 883 and 884 which we consider entirely without substance. The point was that the description of the route in the Scheme was too vague and misleading, so much so the appellants did not file their objections before the Government. Taking the case of the Civil Appeal No. 883, it is by an operator who runs a service from Uravakonda to Adoni, Serial No. 16 of scheme No. 1 describes the route as Adoni to Uravakonda. It was urged that as the scheme notified the route Adoni to Uravakonda but not Uravakonda to Adoni, the appellant thought that his route was not affected. The objection is on its very face frivolous because throughout the Scheme, it is only the terminal points that are specified and that specification carried with it and obviously implies that the operation of transport between the two termini is intended to be nationalised. The compliant in Civil Appeal No. 884 is the same, only the route is different. This completes all the points that are urged before us.43. In view of our conclusion that the schemes are vitiated by non-compliance with the requirements of S. 68-C and the Rules made thereunder, we hold that they have to be quashed as not warranted by law.
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Sadiq Ali & Another Vs. Election Commission of India & Others | a religious group. As against that, the present case relates to a political party wherein none of the rival groups professes to renounce the aims and objects of the party. The other ground is that the dispute in the cited case related to property while that in the present case relates to a legal right and not to property. 35. The case of Samyukta Socialist Party v. Election Commission of India, (1967) 1 SCR 643 = (AIR 1967 SC 898 ) has also no bearing on the present case. The cited case related to merger of two political parties into one as a result of which the election symbol of one of the merger parties was allotted to the new party. The parties separated again and the question which arose for determination was whether the symbol can be taken back from the new party and given to the party to which it originally belonged. It is plain that the nature of controversy in the said case was entirely different. 36. Civil Appeals Nos. 2122-2124 of 1970 have been filed by Shri P. Kakkah and another against the judgment of the Madras High Court on a certificate granted by that Court. It is not necessary to give the facts giving rise to these appeals because according to Shri Natesan, learned counsel for the appellants in these appeals, the only additional point to be agitated is about the vires of Paragraph 15 of the Symbols. Order. The Madras High Court repelled the contention advanced on behalf of the appellants that Paragraph 15 was ultra vires and invalid in so far as it conferred power on the Commission to decide the dispute between two groups of a political party. 37. It would follow from what has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation choice and allotment of symbols and the recognition of political parties in connection therewith. That the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by Rule 5 of Conduct of Election Rules. Sub-rule (4) of Rule 10 gives a power to the Commission to issue general or special directions to the Returning Officers in respect of the allotment of symbols. The allotment of symbols by the Returning officers has to be in accordance with those directions. Sub-rule (5) of Rule 10 gives a power to the Commission to revise the allotment of a symbol by the Returning Officers in so far as the said allotment is inconsistent with the directions issued by the Commission. It would, therefore, follow that Commission has been clothed with plenary powers by the above mentioned Rules in the matter of allotment of symbols. The validity of the said Rules has not been challenged before us. If the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. In case, it is a dispute between two individuals, the method for the settlement of that dispute is provided by paragraph 13 of the Symbols Orders. If on the other hand, a dispute arises between two rival groups for allotment of a symbol of a political party on the ground that each group professes to be that party, the machinery and the manner of resolving such a dispute is given in paragraph 15.Paragraph 15 is intended to effectuate and subserve the main purposes and objects of the Symbols Order. The paragraph is designed to ensure that because of a dispute having arisen in a political party between two or more groups, the entire scheme of the Symbols Order relating to the allotment of a symbol reserved for the political party is not set at naught. The fact that the power for the settlement of such a dispute has been vested in the Commission would not constitute a valid ground for assailing the vires of and striking down paragraph 15. The Commission is an authority created by the Constitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice-President shall be vested in the Commission. The fact that the power of resolving a dispute between two rival groups for allotment of symbol of a political party has been vested in such a high authority would raise a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner. 38. There is also no substance in the contention that as power to make provisions in respect to elections has been given to the Parliament by Article 327 of the Constitution, the power cannot be further delegated to the Commission. The opening words of Article 327 are "subject to the provision of this Constitution". The above words indicate that any law made by the Parliament in exercise of the powers conferred by Article 327 would be subject to the other provisions of the Constitution including Article 324. Article 324 as mentioned above provides that superintendence, direction and control of elections shall be vested in Election Commission. It, therefore, cannot be said that when the Commission issues direction, it does so not on its own behalf but as the delegate of some other authority. It may also be mentioned in this context that when the Central Government issued Conduct of Election Rules, 1961 in exercise of its powers under Section 169 of the Representation of the People Act, 1951, it did so as required by that section after consultation with the Commission. | 0[ds]20. In the present case, we find that a claim was made on behalf of Congress J that its office-bearers were the office-bearers of the Congress. The said claim was repudiated by Congress O and according to it, it was genuine Congress Party and its President was Shri Nijlingappa. According further to the stand taken on behalf of Congress O, the members of Congress J were masquerading themselves in the name and style of the Congress. The Commission, in the circumstances, had to decide the matter under Paragraph 15 and we find nothing objectionable in the communication dated January 15, 1970 sent to the two rival parties on its behalf wherein it was stated that "a dispute appears to have arisen as to which of the two groups is the recognised political party known as the Indian National Congress for the purposes of the Symbols order"21. Controversy between the parties has ranged on the question whether the Commission has taken into account all the available facts and circumstances of the. The Commission in this context considered the various criteria for determining which of the two groups, Congress J or Congress O was the Congress and came to the conclusion that the criteria other than that of the numerical strength or majority could not provide a satisfactory solution25. It is no doubt true that the mass of Congress members are its primary members. There were obvious difficulties in ascertaining who were the primary members because there would in that events have been allegations of fictitious and bogus members and it would have been difficult for the commission to go into those allegations and find the truth within a short span of time. The Commission in deciding that matter under paragraph 15 has to act with a certain measure of promptitude and it has to see that the inquiry does not get bogged down in a quagmire. This apart, there was practical difficulty in ascertaining the wishes of those members. The Commission for this purpose could obviously be not expected to take referendum in all the towns and villages in the country in which there were the primary members of the Congress. It can, in our opinion, be legitimately considered that the members of All India Congress Committee and the delegates reflected by and large the views of the primary membersSo far as this aspect is concerned, we find that as it is not always convenient to convene general session of the Congress or a meeting of the All India Congress Committee, the Congress has its Working Committee which represents the Congress for administrative purposes and for taking decision on political and other matters. Some of the members of the Working Committee are elected by the All India Congress Committee while others are nominated by the President. The Working Committee has not been shown to possess any power of vetoing the decision of the All India Congress Committee. On the contrary, majority decisions taken by the Working Committee at the time of All India Congress Committee meetings are placed before the All India Congress Committee for ratification. In view of the fact that the wishes of the majority of the members of All India Congress Committee as well as the delegates have been ascertained, we find it difficult to accede to the contention that the majority enjoyed by Congress O against Congress J in the Working Committee should carry so much weight as to outweigh the majority support obtained by Congress J among delegates and the members of All India Congress Committee. In any case, we find that as against the slender majority enjoyed by Congress O in the Working Committee, Congress J had substantial majority among the members of All India Congress Committee and the delegates as well as the Congress members of two Houses of Parliament as also the sum total of members of the State LegislaturesThe Commission in this context has found that there were removals and expulsions of the supporters of Congress J from the various Committees of the Congress by the members of Congress O and the President Shri Nijalingappa. The Commission has come to the conclusion that the validity of the action of Shri Nijalingappa and other members of Congress O in removing and expelling members of the other group was doubtful and open to question. The Commission has also questioned the propriety of the action of the Working Committee in rejecting the requisition sent by the members of All India Congress Committee for convening meeting of the All India Congress Committee. It is, in our opinion, not necessary for this Court to express any opinion for the purpose of this appeal about the validity of the above mentioned removals and expulsions nor is it necessary to express any view about the propriety of the rejection of the requisition. Likewise it is not essential to say anything as to whether one or both the groups were in the wrong and if so, to what extent in the controversy relating to the split in the Congress. All that this Court is concerned with is whether the test of majority or numerical strength which has been taken into account by the Commission is in the circumstances of the case a relevant and germane test. On that point, we have no hesitation in holding that in the context of the facts and circumstances of the case, the test of majority and numerical strength was not only germane and relevant but a very valuable testIn this connection, we are of the opinion that although the Commission may hear during the course of proceedings under Paragraph 15 such representatives of the sections or groups or other persons as desire to be heard, the parties to the dispute necessarily remain rival sections of groups of the recognised political party. Other persons as desire to be heard and who are heard by the Commission do not become parties to the dispute so as to have a right of addressing this Court in appeal. We have consequently not allowed arguments to be addressed in appeal on their behalfIn this respect, it has to be borne in mind that the Commission only decides the question as to whether any of the rival sections or groups of a recognised political party, each of whom claims to be that party, is that party. The claim made in this respect is only for the purpose of symbols in connection with the elections to the Parliament and State Legislatures and the decision of the Commission pertains to this limited matter. The Commission while deciding the matter under Paragraph 15 does not decide dispute about property. The proper forum for adjudication of disputes about property are the Civil Courts. The decision of the Commission under Paragraph 15 constitutes a direction to the Returning Officer for the purpose of Rule 10 of the Conduct of Elections Rules, 1961. The said direction shall be binding upon the Returning Officer in accordance with sub-rules (4) and (5) of the above-mentioned RuleThe answer to this contention is that as a result of differences and dissensions, a political party may be split into two or more groups but the symbol cannot be split. It is only one of the rival sections or groups, as is held to be that political party under Paragraph 15, which would be entitled to the use of the symbol in the elections while the other section or group would have to do without that symbol. It is not permissible in a controversy like the present to dissect the symbol and give out of two bullocks represented in the symbol of the Congress to one group and the other bullock to the other group. The symbol is not property to be divided between co-owners. The allotment of a symbol to the candidates set up by a political party is a legal right and in case of split, the Commission has been authorised to determine which of the rival groups or sections is the party which was entitled to the symbol. The Commission in resolving this dispute does not decide as to which group represents the party but which is that party. If it were a question of representation, even a small group according to the Constitution of the organisation may be entitled to represent the party. Where, however, the question arises as to which of the rival groups is the party, the question assumes a different complexion and the numerical strength of each group becomes an important and relevant factor. It cannot be gainsaid that in deciding which group is the party, the Commission has to decide as to which group substantially constitutes the party33. Attempt has also been made during the course of arguments to show that the supporters of Congress J were defaulters in payment of subscription. No such case was admittedly set up before the Commission. We have consequently not allowed the appellants to raise this matter which hinges upon facts in appeal37. It would follow from what has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation choice and allotment of symbols and the recognition of political parties in connection therewith. That the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by Rule 5 of Conduct of Election Rules. Sub-rule (4) of Rule 10 gives a power to the Commission to issue general or special directions to the Returning Officers in respect of the allotment of symbols. The allotment of symbols by the Returning officers has to be in accordance with those directions. Sub-rule (5) of Rule 10 gives a power to the Commission to revise the allotment of a symbol by the Returning Officers in so far as the said allotment is inconsistent with the directions issued by the Commission. It would, therefore, follow that Commission has been clothed with plenary powers by the above mentioned Rules in the matter of allotment of symbols. The validity of the said Rules has not been challenged before us. If the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. In case, it is a dispute between two individuals, the method for the settlement of that dispute is provided by paragraph 13 of the Symbols Orders. If on the other hand, a dispute arises between two rival groups for allotment of a symbol of a political party on the ground that each group professes to be that party, the machinery and the manner of resolving such a dispute is given in paragraph 15.Paragraph 15 is intended to effectuate and subserve the main purposes and objects of the Symbols Order. The paragraph is designed to ensure that because of a dispute having arisen in a political party between two or more groups, the entire scheme of the Symbols Order relating to the allotment of a symbol reserved for the political party is not set at naught. The fact that the power for the settlement of such a dispute has been vested in the Commission would not constitute a valid ground for assailing the vires of and striking down paragraph 15. The Commission is an authority created by the Constitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice-President shall be vested in the Commission. The fact that the power of resolving a dispute between two rival groups for allotment of symbol of a political party has been vested in such a high authority would raise a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner38. There is also no substance in the contention that as power to make provisions in respect to elections has been given to the Parliament by Article 327 of the Constitution, the power cannot be further delegated to the Commission. The opening words of Article 327 are "subject to the provision of this Constitution". The above words indicate that any law made by the Parliament in exercise of the powers conferred by Article 327 would be subject to the other provisions of the Constitution including Article 324. Article 324 as mentioned above provides that superintendence, direction and control of elections shall be vested in Election Commission. It, therefore, cannot be said that when the Commission issues direction, it does so not on its own behalf but as the delegate of some other authority. It may also be mentioned in this context that when the Central Government issued Conduct of Election Rules, 1961 in exercise of its powers under Section 169 of the Representation of the People Act, 1951, it did so as required by that section after consultation with the Commission17. Perusal of the different paragraphs of the Symbols Order makes it manifest that they provide, as is made clear by its preamble, for specification, reservation, choice and allotment of symbols at elections in Parliamentary and aseembly constituencies as well as for the recognition of political parties in relation thereto and for matters connected therewith. One such matter is the decision of a dispute when two rival sections or groups of a recognised political party claim to be that party for the purpose of the Symbols Order. Paragraph 15 provides for the machinery as well as the manner of resolving such a dispute19. Let us now go back to Paragraph 15. The occasion for making an order under this paragraph arises when the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party. The Commission in such an event decides the matter after taking into account all available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard. The Commission may decide that one such rival section or group is that recognised political party or that none of such rival sections or groups is that party. The aforesaid decision has been made binding on all the rival sections or groups who claim to be the political party in question20. In the present case, we find that a claim was made on behalf of Congress J that itss were thes of the Congress. The said claim was repudiated by Congress O and according to it, it was genuine Congress Party and its President was Shri Nijlingappa. According further to the stand taken on behalf of Congress O, the members of Congress J were masquerading themselves in the name and style of the Congress. The Commission, in the circumstances, had to decide the matter under Paragraph 15 and we find nothing objectionable in the communication dated January 15, 1970 sent to the two rival parties on its behalf wherein it was stated that "a dispute appears to have arisen as to which of the two groups is the recognised political party known as the Indian National Congress for the purposes of the Symbols order"24. It may be mentioned that according to Paragraph 6 of the Symbols Order, one of the factors which may be taken into account in treating a political party as a recognised political party is the number of seats secured by that party in the House of People or the State Legislative Assembly or the number of votes polled by the contesting candidates set up by such party.If the number of seats secured by a political party or the number of votes cast in favour of the candidates of a political party can be a relevant consideration for the recognition of a political party, one is at a loss to understand as to how the number of seats in the Parliament and State Legislatures held by the supporters of a group of the political party can be considered to be irrelevant. We can consequently discover no error in the approach of the Commission in applying the rule of majority and numerical strength for determining as to which of the two groups. Congress J and Congress O was the Congress party for the purpose of paragraph 15 of Symbols order25. It is no doubt true that the mass of Congress members are its primary members. There were obvious difficulties in ascertaining who were the primary members because there would in that events have been allegations of fictitious and bogus members and it would have been difficult for the commission to go into those allegations and find the truth within a short span of time. The Commission in deciding that matter under paragraph 15 has to act with a certain measure of promptitude and it has to see that the inquiry does not get bogged down in a quagmire. This apart, there was practical difficulty in ascertaining the wishes of those members. The Commission for this purpose could obviously be not expected to take referendum in all the towns and villages in the country in which there were the primary members of the Congress. It can, in our opinion, be legitimately considered that the members of All India Congress Committee and the delegates reflected by and large the views of the primary membersIn view of the fact that the wishes of the majority of the members of All India Congress Committee as well as the delegates have been ascertained, we find it difficult to accede to the contention that the majority enjoyed by Congress O against Congress J in the Working Committee should carry so much weight as to outweigh the majority support obtained by Congress J among delegates and the members of All India Congress Committee. In any case, we find that as against the slender majority enjoyed by Congress O in the Working Committee, Congress J had substantial majority among the members of All India Congress Committee and the delegates as well as the Congress members of two Houses of Parliament as also the sum total of members of the State | 0 | 9,875 | 3,262 | ### Instruction:
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a religious group. As against that, the present case relates to a political party wherein none of the rival groups professes to renounce the aims and objects of the party. The other ground is that the dispute in the cited case related to property while that in the present case relates to a legal right and not to property. 35. The case of Samyukta Socialist Party v. Election Commission of India, (1967) 1 SCR 643 = (AIR 1967 SC 898 ) has also no bearing on the present case. The cited case related to merger of two political parties into one as a result of which the election symbol of one of the merger parties was allotted to the new party. The parties separated again and the question which arose for determination was whether the symbol can be taken back from the new party and given to the party to which it originally belonged. It is plain that the nature of controversy in the said case was entirely different. 36. Civil Appeals Nos. 2122-2124 of 1970 have been filed by Shri P. Kakkah and another against the judgment of the Madras High Court on a certificate granted by that Court. It is not necessary to give the facts giving rise to these appeals because according to Shri Natesan, learned counsel for the appellants in these appeals, the only additional point to be agitated is about the vires of Paragraph 15 of the Symbols. Order. The Madras High Court repelled the contention advanced on behalf of the appellants that Paragraph 15 was ultra vires and invalid in so far as it conferred power on the Commission to decide the dispute between two groups of a political party. 37. It would follow from what has been discussed earlier in this judgment that the Symbols Order makes detailed provisions for the reservation choice and allotment of symbols and the recognition of political parties in connection therewith. That the Commission should specify symbols for elections in parliamentary and assembly constituencies has also been made obligatory by Rule 5 of Conduct of Election Rules. Sub-rule (4) of Rule 10 gives a power to the Commission to issue general or special directions to the Returning Officers in respect of the allotment of symbols. The allotment of symbols by the Returning officers has to be in accordance with those directions. Sub-rule (5) of Rule 10 gives a power to the Commission to revise the allotment of a symbol by the Returning Officers in so far as the said allotment is inconsistent with the directions issued by the Commission. It would, therefore, follow that Commission has been clothed with plenary powers by the above mentioned Rules in the matter of allotment of symbols. The validity of the said Rules has not been challenged before us. If the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case claim for the allotment of the symbol of a political party is made by two rival claimants. In case, it is a dispute between two individuals, the method for the settlement of that dispute is provided by paragraph 13 of the Symbols Orders. If on the other hand, a dispute arises between two rival groups for allotment of a symbol of a political party on the ground that each group professes to be that party, the machinery and the manner of resolving such a dispute is given in paragraph 15.Paragraph 15 is intended to effectuate and subserve the main purposes and objects of the Symbols Order. The paragraph is designed to ensure that because of a dispute having arisen in a political party between two or more groups, the entire scheme of the Symbols Order relating to the allotment of a symbol reserved for the political party is not set at naught. The fact that the power for the settlement of such a dispute has been vested in the Commission would not constitute a valid ground for assailing the vires of and striking down paragraph 15. The Commission is an authority created by the Constitution and according to Article 324, the superintendence, direction and control of the electoral rolls for and the conduct of elections to Parliament and to the Legislature of every State and of elections to the office of President and Vice-President shall be vested in the Commission. The fact that the power of resolving a dispute between two rival groups for allotment of symbol of a political party has been vested in such a high authority would raise a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner. 38. There is also no substance in the contention that as power to make provisions in respect to elections has been given to the Parliament by Article 327 of the Constitution, the power cannot be further delegated to the Commission. The opening words of Article 327 are "subject to the provision of this Constitution". The above words indicate that any law made by the Parliament in exercise of the powers conferred by Article 327 would be subject to the other provisions of the Constitution including Article 324. Article 324 as mentioned above provides that superintendence, direction and control of elections shall be vested in Election Commission. It, therefore, cannot be said that when the Commission issues direction, it does so not on its own behalf but as the delegate of some other authority. It may also be mentioned in this context that when the Central Government issued Conduct of Election Rules, 1961 in exercise of its powers under Section 169 of the Representation of the People Act, 1951, it did so as required by that section after consultation with the Commission.
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Constitution". The above words indicate that any law made by the Parliament in exercise of the powers conferred by Article 327 would be subject to the other provisions of the Constitution including Article 324. Article 324 as mentioned above provides that superintendence, direction and control of elections shall be vested in Election Commission. It, therefore, cannot be said that when the Commission issues direction, it does so not on its own behalf but as the delegate of some other authority. It may also be mentioned in this context that when the Central Government issued Conduct of Election Rules, 1961 in exercise of its powers under Section 169 of the Representation of the People Act, 1951, it did so as required by that section after consultation with the Commission17. Perusal of the different paragraphs of the Symbols Order makes it manifest that they provide, as is made clear by its preamble, for specification, reservation, choice and allotment of symbols at elections in Parliamentary and aseembly constituencies as well as for the recognition of political parties in relation thereto and for matters connected therewith. One such matter is the decision of a dispute when two rival sections or groups of a recognised political party claim to be that party for the purpose of the Symbols Order. Paragraph 15 provides for the machinery as well as the manner of resolving such a dispute19. Let us now go back to Paragraph 15. The occasion for making an order under this paragraph arises when the Commission is satisfied on information in its possession that there are rival sections or groups of a recognised political party each of whom claims to be that party. The Commission in such an event decides the matter after taking into account all available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard. The Commission may decide that one such rival section or group is that recognised political party or that none of such rival sections or groups is that party. The aforesaid decision has been made binding on all the rival sections or groups who claim to be the political party in question20. In the present case, we find that a claim was made on behalf of Congress J that itss were thes of the Congress. The said claim was repudiated by Congress O and according to it, it was genuine Congress Party and its President was Shri Nijlingappa. According further to the stand taken on behalf of Congress O, the members of Congress J were masquerading themselves in the name and style of the Congress. The Commission, in the circumstances, had to decide the matter under Paragraph 15 and we find nothing objectionable in the communication dated January 15, 1970 sent to the two rival parties on its behalf wherein it was stated that "a dispute appears to have arisen as to which of the two groups is the recognised political party known as the Indian National Congress for the purposes of the Symbols order"24. It may be mentioned that according to Paragraph 6 of the Symbols Order, one of the factors which may be taken into account in treating a political party as a recognised political party is the number of seats secured by that party in the House of People or the State Legislative Assembly or the number of votes polled by the contesting candidates set up by such party.If the number of seats secured by a political party or the number of votes cast in favour of the candidates of a political party can be a relevant consideration for the recognition of a political party, one is at a loss to understand as to how the number of seats in the Parliament and State Legislatures held by the supporters of a group of the political party can be considered to be irrelevant. We can consequently discover no error in the approach of the Commission in applying the rule of majority and numerical strength for determining as to which of the two groups. Congress J and Congress O was the Congress party for the purpose of paragraph 15 of Symbols order25. It is no doubt true that the mass of Congress members are its primary members. There were obvious difficulties in ascertaining who were the primary members because there would in that events have been allegations of fictitious and bogus members and it would have been difficult for the commission to go into those allegations and find the truth within a short span of time. The Commission in deciding that matter under paragraph 15 has to act with a certain measure of promptitude and it has to see that the inquiry does not get bogged down in a quagmire. This apart, there was practical difficulty in ascertaining the wishes of those members. The Commission for this purpose could obviously be not expected to take referendum in all the towns and villages in the country in which there were the primary members of the Congress. It can, in our opinion, be legitimately considered that the members of All India Congress Committee and the delegates reflected by and large the views of the primary membersIn view of the fact that the wishes of the majority of the members of All India Congress Committee as well as the delegates have been ascertained, we find it difficult to accede to the contention that the majority enjoyed by Congress O against Congress J in the Working Committee should carry so much weight as to outweigh the majority support obtained by Congress J among delegates and the members of All India Congress Committee. In any case, we find that as against the slender majority enjoyed by Congress O in the Working Committee, Congress J had substantial majority among the members of All India Congress Committee and the delegates as well as the Congress members of two Houses of Parliament as also the sum total of members of the State
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M/s. Piyare Lal Adishwar Lal Vs. Commissioner of Income Tax, Delhi | pay the price. Counsel for the respondent also relied on Commissioner of Income-tax. West Bengal v. Kalu Babu Lal Chand, (1959) 37 ITR 123 : (AIR 1959 SC 1289 ) where the Managing Directors remuneration was held to be the income of a joint family to be assessed as such in its hands. That case is distinguishable. There the karta of a Hindu undivided family took over a business as a going concern and carried on the business till the company was incorporated. The shares in the name of karta and his brother were acquired with the funds of the joint family. The company was floated with the funds of the joint family and was financed by it and the remuneration received was credited in the Managing Director itself was assignable. The Articles of Association provided that the karta or his assigns or successors in business "whether under his name or any other style or firm" would be the Managing Director of the Company and he was to continue for life until removed because of fraud or dishonesty. Thus the acquisition of business, the floatation of the Company and the appointment of the Managing Director were inseparably liked together. The facts of that case were quite different from that of the present case which are akin to the facts in 1955-1 SCR 1427 : ((S) AIR 1955 SC 404 ).14. The next question for decision is whether the salary of Sheel Chandra as Treasurer of the Bank is assessable as part of the income of Hindu undivided family of which he is the karta or as his separate income. Both the Appellate Tribunal and the High Court were of the opinion that the emoluments as Treasurer were not acquired without detriment and risk to the family property and therefore formed part of the income of the Hindu undivided family. Treasurership is an employment of responsibility, trust and fidelity, and personal integrity and ability and mere ability to furnish a substantial security is not the sole or even the main reason for being appointed to such a responsible post in a Bank like the Central Bank of India. On the other hand his previous experience as an Overseer of the Bank and his being appointed on his applying for the post are indicative of personal fitness for it.15.There is nothing to show that Sheel Chandra had received any particular training at the expense of the family funds or his appointment was the result of any outlay or expenditure of or detriment to the family property. But it was argued on behalf of the respondent that because he had lodged joint family property by way of security his earnings as Treasurer became a part of the income of the Hindu undivided family for the reason that the acquisition was not without risk to the family estate.He relied on Gokul Chand v. Firm Hukum Chand Nath Mal, 48 Ind App 162: (AIR 1921 PC 35), and 1959-37 ITR 123 : (AIR1959 SC 1289). In the former case a member of the joint family entered the Civil Service and that was made possible by the expenditure of family funds which enabled him to acquire the necessary qualifications and it was that fact which made his earnings part of the family income. The following passage in that judgment at p. 168: (of Ind App): (at p. 37 of A. I. R.), was emphasised:"It may be said to be direct in the one case and remote in the other, but if risk or detriment to family property is the point in both cases, there appears to be no such merit in "science", recognised by the sages of the Hindu law, as would warrant the exclusion of gains of science as such from the category of partible acquisitions."Counsel particularly relied on the words "risk of" and contended that by reason of the family property being given in security, the risk as understood in that judgment had arisen; because it became liable for any loss that might be incurred during the course of employment of Sheel Chandra. The word risk in that judgment must be read in the context in which it was used. Family estate was used and expenditure was incurred for equipping one of its members to join the Indian Civil Service. It was in that connection that the words risk of or detriment to family property were used. The latter case, Kalu Babu Lal Chands case (1959) 37 ITR 123 : (AIR 1959 SC 1289 ), has already been discussed. The facts and circumstances of that case were different.16. The cases which the Privy Council relied upon in Gokul Chands case, 48 Ind App 162: (AIR 1921 PC 35), were all cases where joint family funds had been expended to fit a member of the joint family for the particular profession or avocation the income of which was the subject matter of dispute but the respondents were not able to refer to any decision in which it was held that the mere fact of giving joint family property in security for the good conduct of a member of the family employed in a post of trust was sufficient to make the emoluments of the post joint family property because of any detriment to family property or risk of loss. It has not been shown that in this case there was any detriment to the family property within the meaning of the terms as used in decided cases.17. In our opinion the judgment of the High Court was erroneous on both questions which were referred to it and they should both have been decided in favour of the appellant.18. The emoluments received by Sheel Chandra were in the nature of salary and therefore assessable under S. 7 of the Income-tax Act and not under S. 10 of the Act as profits and gains of business and the salary was the income of the individual i.e., Sheel Chandra and not the income of the Hindu undivided family. | 1[ds]It is true that as Treasurer, Sheel Chandra had also undertaken to indemnify the Bank not only for his own default but also for the default of the members of the Cash Department Staff. But Banks have to deal with monies, valuable securities gold and other valuables and must necessarily employ servants whose honesty is guaranteed and it is necessary for the Bank to have some one in its employment who can perform these duties in a responsible manner and be answerable to the Bank for negligence and default in the performance of this class of work. In the very nature of things one man cannot do all this work, not even at one branch, what to say of several branches; other people have therefore to be employed and although the persons employed in the Cash Department are servants of the Bank they do the work which Treasurers ordinarily and customarily do and consequently the treasurer is made responsible for any damage which the Bank suffers due to the default of the Treasurer or of those employed to do the work of the Cashthe Appellate Tribunal and the High Court were of the opinion that the emoluments as Treasurer were not acquired without detriment and risk to the family property and therefore formed part of the income of the Hindu undivided family. Treasurership is an employment of responsibility, trust and fidelity, and personal integrity and ability and mere ability to furnish a substantial security is not the sole or even the main reason for being appointed to such a responsible post in a Bank like the Central Bank of India. On the other hand his previous experience as an Overseer of the Bank and his being appointed on his applying for the post are indicative of personal fitness for it.In our opinion the judgment of the High Court was erroneous on both questions which were referred to it and they should both have been decided in favour of the appellant.18. The emoluments received by Sheel Chandra were in the nature of salary and therefore assessable under S. 7 of the Income-tax Act and not under S. 10 of the Act as profits and gains of business and the salary was the income of the individual i.e., Sheel Chandra and not the income of the Hindu undivided family. | 1 | 4,183 | 406 | ### Instruction:
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pay the price. Counsel for the respondent also relied on Commissioner of Income-tax. West Bengal v. Kalu Babu Lal Chand, (1959) 37 ITR 123 : (AIR 1959 SC 1289 ) where the Managing Directors remuneration was held to be the income of a joint family to be assessed as such in its hands. That case is distinguishable. There the karta of a Hindu undivided family took over a business as a going concern and carried on the business till the company was incorporated. The shares in the name of karta and his brother were acquired with the funds of the joint family. The company was floated with the funds of the joint family and was financed by it and the remuneration received was credited in the Managing Director itself was assignable. The Articles of Association provided that the karta or his assigns or successors in business "whether under his name or any other style or firm" would be the Managing Director of the Company and he was to continue for life until removed because of fraud or dishonesty. Thus the acquisition of business, the floatation of the Company and the appointment of the Managing Director were inseparably liked together. The facts of that case were quite different from that of the present case which are akin to the facts in 1955-1 SCR 1427 : ((S) AIR 1955 SC 404 ).14. The next question for decision is whether the salary of Sheel Chandra as Treasurer of the Bank is assessable as part of the income of Hindu undivided family of which he is the karta or as his separate income. Both the Appellate Tribunal and the High Court were of the opinion that the emoluments as Treasurer were not acquired without detriment and risk to the family property and therefore formed part of the income of the Hindu undivided family. Treasurership is an employment of responsibility, trust and fidelity, and personal integrity and ability and mere ability to furnish a substantial security is not the sole or even the main reason for being appointed to such a responsible post in a Bank like the Central Bank of India. On the other hand his previous experience as an Overseer of the Bank and his being appointed on his applying for the post are indicative of personal fitness for it.15.There is nothing to show that Sheel Chandra had received any particular training at the expense of the family funds or his appointment was the result of any outlay or expenditure of or detriment to the family property. But it was argued on behalf of the respondent that because he had lodged joint family property by way of security his earnings as Treasurer became a part of the income of the Hindu undivided family for the reason that the acquisition was not without risk to the family estate.He relied on Gokul Chand v. Firm Hukum Chand Nath Mal, 48 Ind App 162: (AIR 1921 PC 35), and 1959-37 ITR 123 : (AIR1959 SC 1289). In the former case a member of the joint family entered the Civil Service and that was made possible by the expenditure of family funds which enabled him to acquire the necessary qualifications and it was that fact which made his earnings part of the family income. The following passage in that judgment at p. 168: (of Ind App): (at p. 37 of A. I. R.), was emphasised:"It may be said to be direct in the one case and remote in the other, but if risk or detriment to family property is the point in both cases, there appears to be no such merit in "science", recognised by the sages of the Hindu law, as would warrant the exclusion of gains of science as such from the category of partible acquisitions."Counsel particularly relied on the words "risk of" and contended that by reason of the family property being given in security, the risk as understood in that judgment had arisen; because it became liable for any loss that might be incurred during the course of employment of Sheel Chandra. The word risk in that judgment must be read in the context in which it was used. Family estate was used and expenditure was incurred for equipping one of its members to join the Indian Civil Service. It was in that connection that the words risk of or detriment to family property were used. The latter case, Kalu Babu Lal Chands case (1959) 37 ITR 123 : (AIR 1959 SC 1289 ), has already been discussed. The facts and circumstances of that case were different.16. The cases which the Privy Council relied upon in Gokul Chands case, 48 Ind App 162: (AIR 1921 PC 35), were all cases where joint family funds had been expended to fit a member of the joint family for the particular profession or avocation the income of which was the subject matter of dispute but the respondents were not able to refer to any decision in which it was held that the mere fact of giving joint family property in security for the good conduct of a member of the family employed in a post of trust was sufficient to make the emoluments of the post joint family property because of any detriment to family property or risk of loss. It has not been shown that in this case there was any detriment to the family property within the meaning of the terms as used in decided cases.17. In our opinion the judgment of the High Court was erroneous on both questions which were referred to it and they should both have been decided in favour of the appellant.18. The emoluments received by Sheel Chandra were in the nature of salary and therefore assessable under S. 7 of the Income-tax Act and not under S. 10 of the Act as profits and gains of business and the salary was the income of the individual i.e., Sheel Chandra and not the income of the Hindu undivided family.
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It is true that as Treasurer, Sheel Chandra had also undertaken to indemnify the Bank not only for his own default but also for the default of the members of the Cash Department Staff. But Banks have to deal with monies, valuable securities gold and other valuables and must necessarily employ servants whose honesty is guaranteed and it is necessary for the Bank to have some one in its employment who can perform these duties in a responsible manner and be answerable to the Bank for negligence and default in the performance of this class of work. In the very nature of things one man cannot do all this work, not even at one branch, what to say of several branches; other people have therefore to be employed and although the persons employed in the Cash Department are servants of the Bank they do the work which Treasurers ordinarily and customarily do and consequently the treasurer is made responsible for any damage which the Bank suffers due to the default of the Treasurer or of those employed to do the work of the Cashthe Appellate Tribunal and the High Court were of the opinion that the emoluments as Treasurer were not acquired without detriment and risk to the family property and therefore formed part of the income of the Hindu undivided family. Treasurership is an employment of responsibility, trust and fidelity, and personal integrity and ability and mere ability to furnish a substantial security is not the sole or even the main reason for being appointed to such a responsible post in a Bank like the Central Bank of India. On the other hand his previous experience as an Overseer of the Bank and his being appointed on his applying for the post are indicative of personal fitness for it.In our opinion the judgment of the High Court was erroneous on both questions which were referred to it and they should both have been decided in favour of the appellant.18. The emoluments received by Sheel Chandra were in the nature of salary and therefore assessable under S. 7 of the Income-tax Act and not under S. 10 of the Act as profits and gains of business and the salary was the income of the individual i.e., Sheel Chandra and not the income of the Hindu undivided family.
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Hindustan Brown Boveri, Limited Vs. Their Workmen and Another | draft. The section further provides that the certifying officer should decide after an opportunity of being heard is given to the employer and the trade union or such other representatives of the workmen as may be prescribed whether or not any modification of or addition to the draft is necessary and thereafter certify the standing orders with or without modification as the case may be. Under S. 13 if an employer acts in contravention of such certified standing orders, he is liable to a fine and in case of continuing offence with a higher fine. These provisions show that the purpose of the Act is to have for each industrial establishment standing orders laying down conditions of work for the employees therein and ensuring security of employment. Section 2(d) defines as "employer" as meaning the owner of an industrial establishment and includes in a factory any person named as manager and in any other industrial establishment any person responsible to the owner for supervision and control of such establishment. The definition in expressed in comprehensive terms to enforce the object of the Act, that is, to require all industrial establishment to submit and have certified standing orders defining the conditions of work. But the definition can be availed of for the purposes of the Act and in respect of questions arising thereunder or if it is otherwise made applicable. Where the standing orders themselves define a "company" for the purpose of distribution of duties and powers, it is that definition which is relevant when a question arises as to who is to exercise those powers and perform those duties. There can be no manner of doubt that the company as defined by standing order 2(a) is the company with reference to its activities at Faridabad but which has its need and registered office at Bombay. Therefore, as provided by standing orders 23 and 27, it is that company which is given the power to pass order of punishment in respect of both minor and major offences.The next question is whether we should permit Sri Gokhale to take the additional ground, viz., of the company having assigned its power of dismissal to the works manager. The application is in substance one for leading additional evidence to establish the power-of-attorney said to have been executed by the company in favour of its works manager though it is in the guise of raising an additional ground. We must therefore be guided by those well-settled principles under which only additional evidence is allowed to be adduced at the stage of the hearing of an appeal.6. In view of the decision in Jabalpur Electric Supply Company [1962 - II L.L.J. 216] the company to doubt could delegate its disciplinary powers unless such delegation is debarred by its articles of association which regulate the conduct of its business. Therefore, where such delegation is properly made, the delegate can validly discharge the duty and exercise the power delegated to him. However, it is undisputed that the company failed to produce the power-of-attorney and allowed the labour court as also the respondents to remain in ignorance of it. That is somewhat strange, for the reference was in very wide terms. It referred two questions for adjudication:"(i) Whether the demotion of Arjan Singh is justified and in order ? If not, to what relief he is entitled ?(ii) Whether the termination of service of Samunder Lal and Asa Singh is justified and in order ? If not, to what relief they are entitled" ?7. The company should have known that the words "in order" would include the competence of the works manager to pass the orders in question. These words should have put the company on guard. Even if the reference did not do so, the statement of claim filed by the respondent-workmen clearly raised the question whether "the person awarding the punishment had no jurisdiction to do so." Unfortunately, the labour court while framing the issues did not specifically raise the issue as to the works managers authority. The workmen also did not apply for raising such a separate issue. Nevertheless the question was expressly raised by the workmen at the stage of arguments and it is clear that it was on the basis of those arguments that the labour court held that the company and not the works manager had the power to pass the said orders. The company at that stage could have applied to the labour court either to disallow the workmen from raising the contention in view of there being no issue or to raise an additional issue in view of the wide terms of the reference and allow it to produce the power-of-attorney or to give some time for its production if it felt that the contention raised by the workmen had taken it by surprise. The company adopted none of these courses and allowed the matter to proceed on the record as it then was before the labour court. It did not even inform the labour court of the existence of the power-of-attorney. Even when the company filed its special leave petition it failed to urge therein that company had executed a power-of-attorney. As already stated, the point as to the existence of the power-of-attorney was raised for the first time in the application for leave to raise an additional plea filed after the special leave petition was lodged. Even at that stage it failed to annex along with that application the power-of-attorney and contented itself with producing some extracts from it.Now, the principles on which the appellate Court permits additional evidence are well-known. It is quite clear that this is not a case where the company can avail itself of any of those principles. There is no manner of doubt that the company was negligent in not producing the document. This is therefore, not a case where the company not produce this additional evidence or was prevented from doing so, or that it has now discovered a fresh piece of evidence. | 1[ds]In view of the clear distinction drawn in these definitions it is not possible to say that the company includes its officers. Apart from this distinction, it appears from the scheme of the standing orders that wherever a certain duty or power is sought to be entrusted to the company of its officers the standing orders say so in express terms. Thus standing orders 3 empowers the manager or the general manager in his discretion to recruit persons in the companys service at Faridabad. Standing order 12(1) authorizes the general manager or the manager or a person authorized by him to great leave to a workman depending on the exigencies of work. The procedure for such leave is by way of an application to the general manager or manager or the person authorized byfollows that the powers to pass an order of dismissal and of the lesser punishment in lieu of dismissal are both vested in the company and not in any of its other authorities. Broadly stated, the scheme of the standing orders seems to be that matters ofroutine are entrusted to the manager or the general manager or a person authorized by him, in the present case to the works managers, in the absence of any officer designated as manager or general manager, while matters such as those involving change in the conditions of work which are likely to raise industrial disputes have been retained with the company. The company of course acts through its officers where it empowers any of them to do so. But in the absence of any such delegation it is the company and not its works manager who can exercise the power of punishment either under standing order 23 or standing order 27. The contention that the expression "company" in standing order 2(a) includes the works manager and therefore the works manager was competent to pass the aforesaid orders is not tenable.The Industrial Employment (Standing Orders) Act was passed for requiring employers in industrial establishments to define conditions of employment underprovisions show that the purpose of the Act is to have for each industrial establishment standing orders laying down conditions of work for the employees therein and ensuring security ofas provided by standing orders 23 and 27, it is that company which is given the power to pass order of punishment in respect of both minor and majorapplication is in substance one for leading additional evidence to establish thesaid to have been executed by the company in favour of its works manager though it is in the guise of raising an additional ground. We must therefore be guided by thoseprinciples under which only additional evidence is allowed to be adduced at the stage of the hearing of anwhere such delegation is properly made, the delegate can validly discharge the duty and exercise the power delegated to him. However, it is undisputed that the company failed to produce theand allowed the labour court as also the respondents to remain in ignorance ofalready stated, the point as to the existence of thewas raised for the first time in the application for leave to raise an additional plea filed after the special leave petition was lodged. Even at that stage it failed to annex along with that application theand contented itself with producing some extracts from it.Now, the principles on which the appellate Court permits additional evidence areIt is quite clear that this is not a case where the company can avail itself of any of those principles. There is no manner of doubt that the company was negligent in not producing the document. This is therefore, not a case where the company not produce this additional evidence or was prevented from doing so, or that it has now discovered a fresh piece of evidence. | 1 | 2,933 | 669 | ### 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:
draft. The section further provides that the certifying officer should decide after an opportunity of being heard is given to the employer and the trade union or such other representatives of the workmen as may be prescribed whether or not any modification of or addition to the draft is necessary and thereafter certify the standing orders with or without modification as the case may be. Under S. 13 if an employer acts in contravention of such certified standing orders, he is liable to a fine and in case of continuing offence with a higher fine. These provisions show that the purpose of the Act is to have for each industrial establishment standing orders laying down conditions of work for the employees therein and ensuring security of employment. Section 2(d) defines as "employer" as meaning the owner of an industrial establishment and includes in a factory any person named as manager and in any other industrial establishment any person responsible to the owner for supervision and control of such establishment. The definition in expressed in comprehensive terms to enforce the object of the Act, that is, to require all industrial establishment to submit and have certified standing orders defining the conditions of work. But the definition can be availed of for the purposes of the Act and in respect of questions arising thereunder or if it is otherwise made applicable. Where the standing orders themselves define a "company" for the purpose of distribution of duties and powers, it is that definition which is relevant when a question arises as to who is to exercise those powers and perform those duties. There can be no manner of doubt that the company as defined by standing order 2(a) is the company with reference to its activities at Faridabad but which has its need and registered office at Bombay. Therefore, as provided by standing orders 23 and 27, it is that company which is given the power to pass order of punishment in respect of both minor and major offences.The next question is whether we should permit Sri Gokhale to take the additional ground, viz., of the company having assigned its power of dismissal to the works manager. The application is in substance one for leading additional evidence to establish the power-of-attorney said to have been executed by the company in favour of its works manager though it is in the guise of raising an additional ground. We must therefore be guided by those well-settled principles under which only additional evidence is allowed to be adduced at the stage of the hearing of an appeal.6. In view of the decision in Jabalpur Electric Supply Company [1962 - II L.L.J. 216] the company to doubt could delegate its disciplinary powers unless such delegation is debarred by its articles of association which regulate the conduct of its business. Therefore, where such delegation is properly made, the delegate can validly discharge the duty and exercise the power delegated to him. However, it is undisputed that the company failed to produce the power-of-attorney and allowed the labour court as also the respondents to remain in ignorance of it. That is somewhat strange, for the reference was in very wide terms. It referred two questions for adjudication:"(i) Whether the demotion of Arjan Singh is justified and in order ? If not, to what relief he is entitled ?(ii) Whether the termination of service of Samunder Lal and Asa Singh is justified and in order ? If not, to what relief they are entitled" ?7. The company should have known that the words "in order" would include the competence of the works manager to pass the orders in question. These words should have put the company on guard. Even if the reference did not do so, the statement of claim filed by the respondent-workmen clearly raised the question whether "the person awarding the punishment had no jurisdiction to do so." Unfortunately, the labour court while framing the issues did not specifically raise the issue as to the works managers authority. The workmen also did not apply for raising such a separate issue. Nevertheless the question was expressly raised by the workmen at the stage of arguments and it is clear that it was on the basis of those arguments that the labour court held that the company and not the works manager had the power to pass the said orders. The company at that stage could have applied to the labour court either to disallow the workmen from raising the contention in view of there being no issue or to raise an additional issue in view of the wide terms of the reference and allow it to produce the power-of-attorney or to give some time for its production if it felt that the contention raised by the workmen had taken it by surprise. The company adopted none of these courses and allowed the matter to proceed on the record as it then was before the labour court. It did not even inform the labour court of the existence of the power-of-attorney. Even when the company filed its special leave petition it failed to urge therein that company had executed a power-of-attorney. As already stated, the point as to the existence of the power-of-attorney was raised for the first time in the application for leave to raise an additional plea filed after the special leave petition was lodged. Even at that stage it failed to annex along with that application the power-of-attorney and contented itself with producing some extracts from it.Now, the principles on which the appellate Court permits additional evidence are well-known. It is quite clear that this is not a case where the company can avail itself of any of those principles. There is no manner of doubt that the company was negligent in not producing the document. This is therefore, not a case where the company not produce this additional evidence or was prevented from doing so, or that it has now discovered a fresh piece of evidence.
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In view of the clear distinction drawn in these definitions it is not possible to say that the company includes its officers. Apart from this distinction, it appears from the scheme of the standing orders that wherever a certain duty or power is sought to be entrusted to the company of its officers the standing orders say so in express terms. Thus standing orders 3 empowers the manager or the general manager in his discretion to recruit persons in the companys service at Faridabad. Standing order 12(1) authorizes the general manager or the manager or a person authorized by him to great leave to a workman depending on the exigencies of work. The procedure for such leave is by way of an application to the general manager or manager or the person authorized byfollows that the powers to pass an order of dismissal and of the lesser punishment in lieu of dismissal are both vested in the company and not in any of its other authorities. Broadly stated, the scheme of the standing orders seems to be that matters ofroutine are entrusted to the manager or the general manager or a person authorized by him, in the present case to the works managers, in the absence of any officer designated as manager or general manager, while matters such as those involving change in the conditions of work which are likely to raise industrial disputes have been retained with the company. The company of course acts through its officers where it empowers any of them to do so. But in the absence of any such delegation it is the company and not its works manager who can exercise the power of punishment either under standing order 23 or standing order 27. The contention that the expression "company" in standing order 2(a) includes the works manager and therefore the works manager was competent to pass the aforesaid orders is not tenable.The Industrial Employment (Standing Orders) Act was passed for requiring employers in industrial establishments to define conditions of employment underprovisions show that the purpose of the Act is to have for each industrial establishment standing orders laying down conditions of work for the employees therein and ensuring security ofas provided by standing orders 23 and 27, it is that company which is given the power to pass order of punishment in respect of both minor and majorapplication is in substance one for leading additional evidence to establish thesaid to have been executed by the company in favour of its works manager though it is in the guise of raising an additional ground. We must therefore be guided by thoseprinciples under which only additional evidence is allowed to be adduced at the stage of the hearing of anwhere such delegation is properly made, the delegate can validly discharge the duty and exercise the power delegated to him. However, it is undisputed that the company failed to produce theand allowed the labour court as also the respondents to remain in ignorance ofalready stated, the point as to the existence of thewas raised for the first time in the application for leave to raise an additional plea filed after the special leave petition was lodged. Even at that stage it failed to annex along with that application theand contented itself with producing some extracts from it.Now, the principles on which the appellate Court permits additional evidence areIt is quite clear that this is not a case where the company can avail itself of any of those principles. There is no manner of doubt that the company was negligent in not producing the document. This is therefore, not a case where the company not produce this additional evidence or was prevented from doing so, or that it has now discovered a fresh piece of evidence.
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Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI) | Y.K. Sabharwal, J. 1. The challenge made to the constitutional validity of amendments made to the Code of Civil Procedure (for short, the Code) by Amendment Acts of 1999 and 2002 was rejected by this Court Salem Advocates Bar Association, T.N. v. Union of India AIR2003SC189 , but it was noticed in the judgment that modalities have to be formulated for the manner in which section 89 of the Code and, for that matter, the other provisions, which have been introduced by way of amendments, may have to be operated. For this purpose, a Committee headed by a former Judge of this Court and Chairman, Law Commission of India (Justice M. Jagannadha Rao) was constituted so as to ensure that the amendments become effective and result in quicker dispensation of justice. It was further observed that the Committee may consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the Alternate Disputes Resolution (ADR) referred to in section 89. It was also observed that the model rules, with or without modification, which are formulated may be adopted by the High Courts concerned for giving effect to section 89(2)(d) of the Code. Further, it was observed that if any difficulties are felt in the working of the amendments, the same can be placed before the Committee which would consider the same and make necessary suggestions in its report. The Committee has filed the report. 2. The report is in three parts. Report 1 contains the consideration of the various grievances relating to amendments to the Code and the recommendations of the Committee. Report 2 contains the consideration of various points raised in connection with draft rules for ADR and mediation as envisaged by section 89 of the Code read with Order X Rule 1A, 1B and 1C. It also contains model Rules. Report 3 contains a conceptual appraisal of case management. It also contains the model rules of case management. 3. First, we will consider Report 1 which deals with the amendments made to the Code. Report No. 1 Amendment inserting Sub-section (2) to Section 26 and Rule 15(4) to Order VI Rule 15. 4. Prior to insertion of aforesaid provisions, there was no requirement of filing affidavit with the pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in Section 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading [Order VI Rule 15(4)]. It was sought to be contended that the requirement of filing an affidavit is illegal and unnecessary in view of the existing requirement of verification of the pleadings. We are unable to agree. The affidavit required to be filed under amended Section 26(2) and Order VI Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings. | 1[ds]Report No. 1Amendment inserting Sub-section (2) to Section 26 and Rule 15(4) to Order VI Rule 15.4. Prior to insertion of aforesaid provisions, there was no requirement of filing affidavit with the pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in Section 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading [Order VI Rule 15(4)]. It was sought to be contended that the requirement of filing an affidavit is illegal and unnecessary in view of the existing requirement of verification of the pleadings. We are unable to agree. The affidavit required to be filed under amended Section 26(2) and Order VI Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings.Amendment of Order XVIII Rule 45. The amendment provides that in every case, the examination-in-chief of a witness shall be on affidavit. The Court has already been vested with power to permit affidavits to be filed as evidence as provided in Order XIX Rules 1 and 2 of the Code. It has to be kept in view that the right of cross-examination and re-examination in open court has not been disturbed by Order XVIII Rule 4 inserted by amendment. It is true that after the amendment cross-examination can be before a Commissioner but we feel that no exception can be taken in regard to the power of the legislature to amend the Code and provide for the examination-in-chief to be on affidavit or cross-examination before a Commissioner. The scope of Order XVIII Rule 4 has been examined and its validity upheld in Salem Advocates Bar Associations case. There is also no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in the affidavit filed by way of examination-in-chief. Further, in Salem Advocates Bar Associations case, it has been held that the trial court in appropriate cases can permit the examination-in-chief to be recorded in the Court. Proviso to Sub-rule (2) of Rule 4 of Order XVIII clearly suggests that the court has to apply its mind to the facts of the case, nature of allegations, nature of evidence and importance of the particular witness for determining whether the witness shall be examined in court or by the Commissioner appointed by it. The power under Order XVIII Rule 4(2) is required to be exercised with great circumspection having regard to the facts and circumstances of the case. It is not necessary to lay down hard and fast rules controlling the discretion of the court to appoint Commissioner to record cross-examination and re-examination of witnesses. The purpose would be served by noticing some illustrative cases which would serve as broad and general guidelines for the exercise of discretion. For instance, a case may involve complex question of title, complex question in partition or suits relating to partnership business or suits involving serious allegations of fraud, forgery, serious disputes as to the execution of the will etc. In such cases, as far as possible, the court may prefer to itself record the cross-examination of the material witnesses. Another contention raised is that when evidence is recorded by the Commissioner, the Court would be deprived of the benefit of watching the demeanour of witness. That may be so but, In our view; the will of the legislature, which has by amending the Code provided for recording evidence by the Commissioner for saving Courts time taken for the said purpose, cannot be defeated merely on the ground that the Court would be deprived of watching the demeanour of the witnesses. Further, as noticed above, in some cases, which are complex in nature, the prayer for recording evidence by the Commissioner may be declined by the Court. It may also be noted that Order XVIII Rule 4, specifically provides that the Commissioner may record such remarks as it thinks material in respect of the demeanour of any witness while under examination. The Court would have the benefit of the observations if made by the Commissioner.7. Amendment to Order XVIII Rule 5(a) and (b) was made in 1976 whereby it was provided that in all appealable cases evidence shall be recorded by the Court. Order XVIII Rule 4 was amended by Amendment Act of 1999 and again by Amendment Act of 2002. Order XVIII Rule 4(3) enables the commissioners to record evidence in all type of cases including appealable cases.9. The aforesaid provision contains a non-obstante clause. It overrides Order XVIII Rule 5 which provides the court to record evidence in all appealable cases. The Court is, therefore, empowered to appoint a Commissioner for recording of evidence in appealable cases as well.10. Further, Order XXVI Rule 4-A inserted by Amendment Act of 1999 provides that notwithstanding anything contained in the Rules, any court may in the interest of justice or for the expeditious disposal of the case or for any other reason, issue Commission in any suit for the examination of any person resident within the local limits of the courts jurisdiction. Order XVIII Rule 19 and Order XXVI Rule 4-A, in our view, would override Order XVIII Rule 5(a) and (b). There is, thus, no conflict.Order XVIII Rule 4(4) requires that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. Order XVIII Rule 4(8) stipulates that the provisions of Rules 16, 16-A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission thereunder. The discretion to declare a witness hostile has not been conferred on the Commissioner. Under section 154 of the Evidence Act, it is the Court which has to grant permission, in its discretion, to a person who calls a witness, to put any question to that witness which might be put in cross-examination by the adverse party. The powers delegated to the Commissioner under Order XXVI Rules 16, 16-A, 17 and 18 do not include the discretion that is vested in Court under section 154 of the Evidence Act to declare a witness hostile.12. If a situation as to declaring a witness hostile arises before a Commission recording evidence, the concerned party shall have to obtain permission from the Court under section 154 of the Evidence Act and it is only after grant of such permission that the Commissioner can allow a party to cross-examine his own witness. Having regard to the facts of the case, the Court may either grant such permission or even consider to withdraw the commission so as to itself record remaining evidence or impose heavy costs if it finds that permission was sought to delay the progress of the suit or harass the opposite party.13. Another aspect is about proper care to be taken by the Commission of the original documents. Undoubtedly, the Commission has to take proper care of the original documents handed over to him either by Court or filed before him during recording of evidence. In this regard, the High Courts may frame necessary rules, regulations or issue practice directions so as to ensure safe and proper custody of the documents when the same are before the Commissioner. It is the duty and obligation of the Commissioners to keep the documents in safe custody and also not to give access of the record to one party in absence of the opposite party or his counsel. The Commissioners can be required to redeposit the documents with the Court in case long adjournments are granted and for taking back the documents before the adjourned date.Additional Evidence14. In Salem Advocates Bar Associations case, it has been clarified that on deletion of Order XVIII Rule 17-A which provided for leading of additional evidence, the law existing before the introduction of the amendment, i.e., 1st July, 2002, would stand restored. The Rule was deleted by Amendment Act of 2002. Even before insertion of Order XVIII Rule 17-A, the Court had inbuilt power to permit parties to produce evidence not known to them earlier or which could not be produced in spite of due diligence. Order XVIII Rule 17-A did not create any new right but only clarified the position. Therefore, deletion of Order XVIII Rule 17-A does not disentitle production of evidence at a later stage. On a party satisfying the Court that after exercise of due diligence that evidence was not within his knowledge or could not be produced at the time the party was leading evidence, the Court may permit leading of such evidence at a later stage on such terms as may appear to be just.Order VIII Rule 1, as amended by Act 46 of 1999 provides that the defendant shall within 30 days from the date of service of summons on him, present a written statement of his defence. The rigour of this provision was reduced by Amendment Act 22 of 2002 which enables the Court to extend time for filing written statement, on recording sufficient reasons therefor, but the extension can be maximum for 90 days.20. The use of the word shall inOrder VIII Rule 1by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word shall is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.21. In construing this provision, support can also be had fromwhich provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word shall, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision ofOrder VIII Rule 1and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided inThere is no restriction inthat after expiry of ninety days, further time cannot be granted. The Court has wide power to make such order in relation to the suit as it thinks fit. Clearly, therefore, the provision ofOrder VIII Rule 1providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed bySection 39) of the Code provides that the Court which passed a decree may, on the application of the decree-holder send it for execution to another court of competent jurisdiction. By Act 22 of 2002,) has been inserted providing that nothing in the section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.23. Order XXI Rule 3 provides that where Immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more courts, any one of such courts may attach and sell the entire estate or tenure. Likewise, under Order XXI Rule 48, attachment of salary of a Government servant, Railway servant or servant of local authority can be made by the court whether, the judgment-debtor or the disbursing officer is or is not within the local limits of the courts jurisdiction.does not authorise the Court to execute the decree outside its jurisdiction but it does not dilute the other provisions giving such power on compliance of conditions stipulated in those provisions. Thus, the provisions, such as, Order XXI Rule 3 or Order XXI Rule 48 which provide differently, would not be effected by) of the Code.Section 64(2)in the Code has been inserted by Amendment Act, 22 of 2002. Section 64, as it originally stood, has been renumbered as Section 64(1). Section 64(1), inter alia, provides that where an attachment has been made, any private transfer or delivery of property attached or of any interest therein contrary to such attachment shall be void as against all claims enforceable under the attachment. Sub-section (2) protects the aforesaid acts if made in pursuance of any contract for such transfer or delivery entered into and registered before the attachment. The concept of registration has been introduced to prevent false and frivolous cases of contracts being set up with a view to defeat the attachments. If the contract is registered and there is subsequent attachment, any sale deed executed after attachment will be valid, If it is unregistered, the subsequent sale after attachment would not be valid. Such sale would not be protected. There is no ambiguity in Sub-section (2) of Section 64.Order VI Rule 17Order VI Rule 17of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.Service through Courier27. Order V Rule 9, inter alia, permits service of summons by party or through courier. Order V Rule 9(3) and Order V Rule 9-A permit service of summons by courier or by the plaintiff. Order V Rule 9(5) requires the court to declare that the summons had been duly served on the defendant on the contingencies mentioned in the provision. It is in the nature of deemed service.28. While considering the submissions of learned counsel, it has to be borne in mind that problem in respect of service of summons has been one of the major causes of delay in the due progress of the case. It is common knowledge that the defendants have been avoiding to accept summons. There have been serious problems in process serving agencies in various courts. There can, thus, be no valid objection in giving opportunity to the plaintiff to serve the summons on the defendant or get it served through courier. There is, however, danger of false reports of service. It is required to be adequately guarded. The courts shall have to be very careful while dealing with a case where orders for deemed service are required to be made on the basis of endorsement of such service or refusal. The High Courts can make appropriate rules and regulations or issue practice directions to ensure that such provisions of service are not abused so as to obtain false endorsements.29. Order XVII of the Code relates to grant of adjournments. Two amendments have been made therein. One that adjournment shall not be granted to a party more than three times during hearing of the suit. The other relates to cost of adjournment. The awarding of cost has been made mandatory. Costs that can be awarded are of two types. First, cost occasioned by the adjournment and second such higher cost as the court deems fit.30. While examining the scope of proviso to Order XVII Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to Order XVII Rule 2 incorporating Clauses (a) to (e) by Act 104 of 1976 has been retained. Clause (b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The proviso to Order XVII Rule 1 and Order XVII Rule 2 have to be read together. So read, Order XVII does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalized on account of some serious ailment or there may be serious accident or some act of God leading to devastation. It cannot be said that though circumstances may be beyond the control of a party, further adjournment cannot be granted because of restriction of three adjournments as provided in proviso to Order XVII Rule 1.31. In some extreme cases, it may become necessary to grant adjournment despite the fact that three adjournments have already been granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake and riots, devastation on account of Tsunami). Ultimately, it would depend upon the facts and circumstances of each case, on the basis whereof the Court would decide to grant or refuse adjournment. The provision for costs and higher costs has been made because of practice having been developed to award only a nominal cost even when adjournment on payment of costs is granted. Ordinarily, where the costs or higher costs are awarded, the same should be realistic and as far as possible actual cost that had to be incurred by the other party shall be awarded where the adjournment is found to be avoidable but is being granted on account of either negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save proviso to Order XVII Rule 1 from the vice of article 14 of the Constitution of India, it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases noted above. The limitation of three adjournments would not apply where adjournment is to be granted on account of circumstances which are beyond the control of a party. Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost which can also include punitive cost in the discretion of the Court, adjournment beyond three can be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. We may, however, add that grant of any adjournment let alone first, second or third adjournment is not a right of a party. The grant of adjournment by a court has to be on a party showing special and extraordinary circumstances. It cannot be in routine. While considering prayer for grant of adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments.Order XVIII Rule 2) which was inserted by Act 104 of 1976 has been omitted by Act 46 of 1999. Under the said Rule, the Court could direct or permit any party, to examine any party or any witness at any stage. The effect of deletion is the restoration of the status quo ante. This means that law that was prevalent prior to 1976 amendment, would govern. The principles as noticed hereinbefore in regard to deletion of Order XVIII Rule 17(a) would apply to the deletion of this provision as well. Even prior to insertion of, such a permission could be granted by the Court in its discretion. The provision was inserted in 1976 by way of caution. The omission of) by 1999 amendment does not take away Courts inherent power to call for any witness at any stage either suo moto or on the prayer of a party invoking the inherent powers of the Court.Order XVIII Rule 2Sub-rules (3A) to 3(D) have been inserted by Act 22 of 2002. The object of filing written arguments or fixing time limit of oral arguments is with a view to save time of court. The adherence to the requirement of these rules is likely to help in administering fair and speedy justice.Order VII Rule 14Order VII Rule 14deals with production of documents which are the basis of the suit or the documents in plaintiffs possession or power. These documents are to be entered in the list of documents and produced in the Court with plaint.) requires leave of Court to be obtained for production of the documents later.) reads as under:Nothing in this rule shall apply to document produced for the cross examination of the plaintiffs witnesses, or, handed over to a witness merely to refresh his memory.35. In the aforesaid Rule, it is evident that the words plaintiffs witnesses have been mentioned as a result of mistake seems to have been committed by the legislature. The words ought to be defendants witnesses.36. Order VII relates to the production of documents by the plaintiff whereas Order VIII relates to production of documents by the defendant. Under) a document not produced by defendant can be confronted to the plaintiffs witness during cross-examination. Similarly, the plaintiff can also confront the defendants witness with a document during cross-examination. By mistake, instead of defendants witnesses, the words plaintiffs witnesses have been mentioned in Order VII Rule (4).37. Section 35 of the Code deals with the award of cost and Section 35A with award of compensatory costs in respect of false or vexatious claims or defences. Section 95 deals with grant of compensation for obtaining arrest, attachment or injunction on insufficient grounds. These three sections deal with three different aspects of award of cost and compensation. Under Section 95 cost can be awarded upto Rs. 50,000/-and under Section 35A, the costs awardable are upto Rs. 3,000/-. Section 35B provides for award of cost for causing delay where a party fails to take the step which he was required by or under the Code to take or obtains an adjournment for taking such step or for producing evidence or on any other ground. In circumstances mentioned in Section 35-B an order may be made requiring the defaulting party to pay to other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. Section 35 postulates that the cost shall follow the event and if not, reasons thereof shall be stated. The award of the cost of the suit is in the discretion of the Court. In Sections 35 and 35B, there is no upper limit of amount of cost awardable.38. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite SectionSuch a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous defences. Further wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyers fee, typing and other cost in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow.section 80(1) of the Code requires prior notice of two months to be served on the Government as a condition for filing a suit except when there is urgency for interim order in which case the Court may not insist on the rigid rule of prior notice. The two months period has been provided for so that the Government shall examine the claim put up in the notice and has sufficient time to send a suitable reply. The underlying object is to curtail the litigation. The object also is to curtail the area of dispute and controversy. Similar provisions also exist in various other legislations as well. Wherever the statutory provision requires service of notice as a condition precedent for filing of suit and prescribed period therefore, it is not only necessary for the governments or departments or other statutory bodies to send a reply to such a notice but it is further necessary to properly deal with all material points and issues raised in the notice. The Governments, Government departments or statutory authorities are defendants in large number of suits pending in various courts in the country. Judicial notice can be taken of the fact that in large number of cases either the notice is not replied or in few cases where reply is sent, it is generally vague and evasive. The result is that the object underlyingof the Code and similar provisions gets defeated. It not only gives rise to avoidable litigation but also results in heavy expense and cost to the exchequer as well. Proper reply can result in reduction of litigation between State and the citizens. In case proper reply is sent either the claim in the notice may be admitted or area of controversy curtailed or the citizen may be satisfied on knowing the stand of the State. There is no accountability in the Government, Central or State or the statutory authorities in violating the spirit and object of40. These provisions cast an implied duty on all concerned governments and States and statutory authorities to send appropriate reply to such notices.41. section 115 of the Code vests power of revision in the High Court over courts subordinate to it. Proviso to section 115(1) of the Code before the amendment by Act 46 of 1999 read as under:Provided that the High Court shall not, under this section vary or reverse any order made, or may order deciding an issue, in the course of a suit or other proceeding except where -(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding; or(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.42. Now, the aforesaid proviso has been substituted by the following proviso.:Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.43. The aforesaid Clause (b) stands omitted. The question is about the constitutional powers of the High Courts under Article 227 on account of omission made in section 115 of the Code. The question stands settled by a decision of this Court in Surya Dev Rai v. Ram Chander Rai and Ors. AIR2003SC3044 holding that the power of the High Court under article 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. Curtailment of revisional jurisdiction of the High Court under section 115 of the Code does not take away and could not have taken away the constitutional jurisdiction of the High Court. The power exists, untrammeled by the amendment in section 115 and is available to be exercised subject to rules of self-discipline and practice which are as well settled.Section 14844. The amendment made inaffects the power of the Court to enlarge time that may have been fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the Court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed incannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of Court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to fully operate. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 clays for the reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either underor Section 151 We are dealing with a case where the time is fixed or granted by the Court for performance of an act prescribed or allowed by the Court.46. There can be many cases where non-grant of extension beyond 30 days would amount to failure of justice. The object of the Code is not to promote failure of justice., therefore, deserves to be read down to mean that where sufficient cause exists or events are beyond the control of a party, the Court would have inherent power to extend time beyond 30 days.Order IX Rule 547. The period of seven days mentioned inOrder IX Rule 5is clearly directory.Order XI Rule 1548. The stipulation in Rule 15 of Order XI confining the inspection of documents at or before the settlement of issues instead of at any time is also nothing but directory. It does not mean that the inspection cannot be allowed after the settlement of issues.Judicial Impact Assessment49. The Committee has taken note of para 7.8.2 of Volume I of the Report of the National Commission to Review the Working of the Constitution which reads as follows :7.8.2 Government of India should not throw the entire burden of establishing the subordinate courts and maintaining the subordinate judiciary on the State Governments. There is a concurrent obligation on the Union Government to meet the expenditure for subordinate courts. Therefore, the Planning Commission and the Finance Commission must allocate sufficient funds from national resources to meet the demands of the State Judiciary in each of the States.51. The Committee has suggested that the Central Government has to provide substantial funds for establishing courts which are subordinate to the High Court and the Planning Commission and the Finance must make adequate provisions therefore, noticing that it has been so recommended by the Constitution Review Committee.52. The Committee has also suggested that:Further, there must be judicial impact assessment, as done in the United States, whenever any legislation is introduced either in Parliament or in the State Legislatures. The financial memorandum attached to each Bill must estimate not only the budgetary requirement of other staff but also the budgetary requirement for meeting the expenses of the additional cases that may arise out of the new Bill when it is passed by the legislature. The said budget must mention the number of civil and criminal cases likely to be generated by the new Act, how many Courts are necessary, how many Judges and staff are necessary and what is the infrastructure necessary. So far in the last fifty years such a judicial impact assessment has never been made by any legislature or by Parliament in our country.Report No. 254. We will now take updealing with model Alternative Dispute Resolution and Mediation Rules.55. Part X of the Code (Sections 121 to 131) contains provisions in respect of the Rules. Sections 122 and 125 enable the High Courts to make Rules. Section 128 deals with matters for which rules may provide. It, inter alia, states that the rules which are not inconsistent with the provisions in the body of the Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts.57. Some doubt as to a possible conflict has been expressed in view of use of the word may in section 89 when it stipulates that the Court may reformulate the terms of a possible settlement and refer the same for and use of the word shall in Order X, Rule 1A when it states that the Court shall direct the parties to the suit to opt either mode of settlements outside the Court as specified in Sub-section (1) of section 89.58. As can be seen from section 89, its first part uses the word shall when it stipulates that the court shall formulate terms of settlement. The use of the word may in later part of section 89 only relates to the aspect of reformulating the terms of a possible settlement. The intention of the legislature behind enacting section 89 is that where it appears to the Court that there exists element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the Section and if the parties do not agree, the court shall refer them to one or other of the said modes. section 89 uses both the word shall and may whereas Order X, Rule 1A uses the word shall but on harmonious reading of these provisions it becomes clear that the use of the word may in section 89 only governs the aspect of reformulation of the terms of a possible settlement and its reference to one of ADR methods. There is no conflict. It is evident that what is referred to one of the ADR modes is the dispute which is summarized in the terms of settlement formulated or reformulated in terms of section 89.59. One of the modes to which the dispute can be referred is Arbitration. section 89 (2) provides that where a dispute has been referred for Arbitration or Conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (for short 1996 Act) shall apply as if the proceedings for Arbitration or Conciliation were referred for settlement under the provisions of 1996 Act. Section 8 of the 1996 Act deals with the power to refer parties to Arbitration where there is arbitration agreement. As held in P. Anand Gajapathi Raju and Ors. v. P.V.G. Raju (Dead) and Ors. [2000]2SCR684 , 1996 Act governs a case where arbitration is agreed upon before or pending a suit by all the parties. The 1996 Act, however, does not contemplate a situation as in section 89 of the Code where the Court asks the parties to choose one or other ADRs including Arbitration and the parties choose Arbitration as their option. Of course, the parties have to agree for Arbitration. Section 82 of 1996 Act enables the High Court to make Rules consistent with this Act as to all proceedings before the Court under 1996 Act. Section 84 enables the Central Government to make rules for carrying out the provisions of the Act. The procedure for option to Arbitration among four ADRs is not contemplated by the 1996 Act and, therefore, Section 82 or 84 has no applicability where parties agree to go for arbitration under section 89 of the Code. As already noticed, for the purposes of section 89 and Order X, Rule 1A, 1B and Order X Rule 1C, the relevant Sections in Part X of the Code enable the High Court to frame rules. If reference is made to Arbitration under section 89 of the Code, 1996 Act would apply only from the stage after reference and not before the stage of reference when options under section 89 are given by the Court and chosen by the parties. On the same analogy, 1996 Act in relation to Conciliation would apply only after the stage of reference to Conciliation. The 1996 Act does not deal with a situation where after suit is filed, the court requires a party to choose one or other ADRs including Conciliation. Thus, for Conciliation also rules can be made under Part X of the Code for purposes of procedure for opting for Conciliation and upto the stage of reference to Conciliation. Thus, there is no impediment in the ADR rules being framed in relation to Civil Court as contemplated in section 89 upto the stage of reference to ADR. The 1996 Act comes into play only after the stage of reference upto the award. Applying the same analogy, the Legal Services Authority Act, 1987 for short 1987 Act) or the Rules framed thereunder by the State Governments cannot act as impediment in the High Court making rules under Part X of the Code covering the manner in which option to Lok Adalat can be made being one of the modes provided in section 89. The 1987 Act also does not deal with the aspect of exercising option to one of four ADR methods mentioned in section 89. section 89 makes applicable 1996 Act and 1987 Act from the stage after exercise of options and making of reference.60. A doubt has been expressed in relation to Clause (d) of section 89 (2) of the Code on the question as to finalisation of the terms of the compromise. The question is whether the terms of compromise are to be finalised by or before the mediator or by or before the court. It is evident that alt the four alternatives, namely, Arbitration, Conciliation, judicial settlement including settlement through Lok Adalat and mediation are meant to be the action of persons or institutions outside the Court and not before the Court. Order X, Rule 1C speaks of the Conciliation forum referring back the dispute to the Court. In fact, the court is not involved in the actual mediation/conciliation. Clause (d) of section 89(2) only means that when mediation succeeds and parties agree to the terms of settlement, the mediator will report to the court and the court, after giving notice and hearing the parties, effect the compromise and pass a decree in accordance with the terms of settlement accepted by the parties. Further, in this view, there is no question of the Court which refers the matter to mediation/conciliation being debarred from hearing the matter where settlement is not arrived at. The Judge who makes the reference only considers the limited question as to whether there are reasonable grounds to expect that there will be settlement and on that ground he cannot be treated to be disqualified to try the suit afterwards if no settlement is arrived at between the parties. | 1 | 563 | 7,469 | ### 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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Y.K. Sabharwal, J. 1. The challenge made to the constitutional validity of amendments made to the Code of Civil Procedure (for short, the Code) by Amendment Acts of 1999 and 2002 was rejected by this Court Salem Advocates Bar Association, T.N. v. Union of India AIR2003SC189 , but it was noticed in the judgment that modalities have to be formulated for the manner in which section 89 of the Code and, for that matter, the other provisions, which have been introduced by way of amendments, may have to be operated. For this purpose, a Committee headed by a former Judge of this Court and Chairman, Law Commission of India (Justice M. Jagannadha Rao) was constituted so as to ensure that the amendments become effective and result in quicker dispensation of justice. It was further observed that the Committee may consider devising a model case management formula as well as rules and regulations which should be followed while taking recourse to the Alternate Disputes Resolution (ADR) referred to in section 89. It was also observed that the model rules, with or without modification, which are formulated may be adopted by the High Courts concerned for giving effect to section 89(2)(d) of the Code. Further, it was observed that if any difficulties are felt in the working of the amendments, the same can be placed before the Committee which would consider the same and make necessary suggestions in its report. The Committee has filed the report. 2. The report is in three parts. Report 1 contains the consideration of the various grievances relating to amendments to the Code and the recommendations of the Committee. Report 2 contains the consideration of various points raised in connection with draft rules for ADR and mediation as envisaged by section 89 of the Code read with Order X Rule 1A, 1B and 1C. It also contains model Rules. Report 3 contains a conceptual appraisal of case management. It also contains the model rules of case management. 3. First, we will consider Report 1 which deals with the amendments made to the Code. Report No. 1 Amendment inserting Sub-section (2) to Section 26 and Rule 15(4) to Order VI Rule 15. 4. Prior to insertion of aforesaid provisions, there was no requirement of filing affidavit with the pleadings. These provisions now require the plaint to be accompanied by an affidavit as provided in Section 26(2) and the person verifying the pleadings to furnish an affidavit in support of the pleading [Order VI Rule 15(4)]. It was sought to be contended that the requirement of filing an affidavit is illegal and unnecessary in view of the existing requirement of verification of the pleadings. We are unable to agree. The affidavit required to be filed under amended Section 26(2) and Order VI Rule 15(4) of the Code has the effect of fixing additional responsibility on the deponent as to the truth of the facts stated in the pleadings.
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use of the word may in later part of section 89 only relates to the aspect of reformulating the terms of a possible settlement. The intention of the legislature behind enacting section 89 is that where it appears to the Court that there exists element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the Section and if the parties do not agree, the court shall refer them to one or other of the said modes. section 89 uses both the word shall and may whereas Order X, Rule 1A uses the word shall but on harmonious reading of these provisions it becomes clear that the use of the word may in section 89 only governs the aspect of reformulation of the terms of a possible settlement and its reference to one of ADR methods. There is no conflict. It is evident that what is referred to one of the ADR modes is the dispute which is summarized in the terms of settlement formulated or reformulated in terms of section 89.59. One of the modes to which the dispute can be referred is Arbitration. section 89 (2) provides that where a dispute has been referred for Arbitration or Conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (for short 1996 Act) shall apply as if the proceedings for Arbitration or Conciliation were referred for settlement under the provisions of 1996 Act. Section 8 of the 1996 Act deals with the power to refer parties to Arbitration where there is arbitration agreement. As held in P. Anand Gajapathi Raju and Ors. v. P.V.G. Raju (Dead) and Ors. [2000]2SCR684 , 1996 Act governs a case where arbitration is agreed upon before or pending a suit by all the parties. The 1996 Act, however, does not contemplate a situation as in section 89 of the Code where the Court asks the parties to choose one or other ADRs including Arbitration and the parties choose Arbitration as their option. Of course, the parties have to agree for Arbitration. Section 82 of 1996 Act enables the High Court to make Rules consistent with this Act as to all proceedings before the Court under 1996 Act. Section 84 enables the Central Government to make rules for carrying out the provisions of the Act. The procedure for option to Arbitration among four ADRs is not contemplated by the 1996 Act and, therefore, Section 82 or 84 has no applicability where parties agree to go for arbitration under section 89 of the Code. As already noticed, for the purposes of section 89 and Order X, Rule 1A, 1B and Order X Rule 1C, the relevant Sections in Part X of the Code enable the High Court to frame rules. If reference is made to Arbitration under section 89 of the Code, 1996 Act would apply only from the stage after reference and not before the stage of reference when options under section 89 are given by the Court and chosen by the parties. On the same analogy, 1996 Act in relation to Conciliation would apply only after the stage of reference to Conciliation. The 1996 Act does not deal with a situation where after suit is filed, the court requires a party to choose one or other ADRs including Conciliation. Thus, for Conciliation also rules can be made under Part X of the Code for purposes of procedure for opting for Conciliation and upto the stage of reference to Conciliation. Thus, there is no impediment in the ADR rules being framed in relation to Civil Court as contemplated in section 89 upto the stage of reference to ADR. The 1996 Act comes into play only after the stage of reference upto the award. Applying the same analogy, the Legal Services Authority Act, 1987 for short 1987 Act) or the Rules framed thereunder by the State Governments cannot act as impediment in the High Court making rules under Part X of the Code covering the manner in which option to Lok Adalat can be made being one of the modes provided in section 89. The 1987 Act also does not deal with the aspect of exercising option to one of four ADR methods mentioned in section 89. section 89 makes applicable 1996 Act and 1987 Act from the stage after exercise of options and making of reference.60. A doubt has been expressed in relation to Clause (d) of section 89 (2) of the Code on the question as to finalisation of the terms of the compromise. The question is whether the terms of compromise are to be finalised by or before the mediator or by or before the court. It is evident that alt the four alternatives, namely, Arbitration, Conciliation, judicial settlement including settlement through Lok Adalat and mediation are meant to be the action of persons or institutions outside the Court and not before the Court. Order X, Rule 1C speaks of the Conciliation forum referring back the dispute to the Court. In fact, the court is not involved in the actual mediation/conciliation. Clause (d) of section 89(2) only means that when mediation succeeds and parties agree to the terms of settlement, the mediator will report to the court and the court, after giving notice and hearing the parties, effect the compromise and pass a decree in accordance with the terms of settlement accepted by the parties. Further, in this view, there is no question of the Court which refers the matter to mediation/conciliation being debarred from hearing the matter where settlement is not arrived at. The Judge who makes the reference only considers the limited question as to whether there are reasonable grounds to expect that there will be settlement and on that ground he cannot be treated to be disqualified to try the suit afterwards if no settlement is arrived at between the parties.
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POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH CHANDIGARH Vs. M/S KALSI CONSTRUCTION COMPANY | R. BANUMATHI, J. 1. Leave granted. 2. This appeal arises out of the impugned judgment and order dated 10.05.2019 passed by the High Court of Punjab and Haryana at Chandigarh in FAO No.4045 of 2003 in and by which the High Court has dismissed the appeal of the appellant herein filed under Section 37 of the Arbitration and Conciliation Act and affirmed the Award passed by the Arbitrator including with regard to the rate of interest awarded by the arbitrator at the rate of 18% per annum. 3. The respondent-M/s. Kalsi Construction Company was allotted a contract for construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education. Regarding the completion of the work, dispute arose between the parties which was referred to arbitration. Learned Arbitrator by the Award dated 31.12.1999 awarded an amount of Rs.1,17,00,000/- (Rupees one crore seventeen lakhs) against claim of Rs.10,63,00,000/- (Rupees ten crore sixty three lakhs) made by the respondent-Company. After referring to Section 31(7) of the Arbitration and Conciliation Act which vests authority to award the interest, learned Arbitrator awarded interest at the rate of 18% per annum. Challenging the award, the appeal preferred by the appellant-Institution under Section 34 of the said Act came to be dismissed which was affirmed by the High Court by the impugned judgment in the appeal preferred by the appellant under Section 37 of the said Act. 4. We have heard Mr. Sudarshan Rajan, learned counsel appearing for the appellanat-Institution and also Mr. Naresh Markanda, learned senior counsel appearing for the respondent-Company. 5. Mr. Sudarshan Rajan, learned counsel appearing for the appellant-Institution, on instruction, has submitted that the appellant-Institution is not pressing other grounds enumerated in the grounds of the appeal and is only praying for reduction of rate of interest. 6. Mr. Naresh Markanda, learned senior counsel appearing for the respondent-Company, has submitted that so far as the rate of interest, the respondent is leaving that aspect to the discretion of this Court for considering the rate of interest. However, learned Senior counsel submitted that it should be a reasonable rate of interest since the award was passed in 1999 and the respondent is yet to be paid the award amount. 7. In the absence of agreement to the contrary between the parties, Section 31(7)(a) of the said Act confers jurisdiction upon the Arbitral Tribunal to award interest unless otherwise agreed by the parties at such rate as the Arbitral Tribunal considers reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arises and the date on which the award is made. In the present case, the parties have agreed for the rate of interest at 18% per annum. However, since the award is of the year 1999 and considering the facts that the learned Senior counsel had left the matter to the discretion of the court. Considering the facts and circumstances of the case, in our view in exercise of the power under Article 142 of the Constitution of India, the interest at the rate of 18% awarded by the Arbitral Tribunal is to be reduced. 8. Considering the fact that the contract relates to construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education, Chandigarh and also other facts and circumstances of the case, in exercise of our power under Article 142 of the Constitution of India, the orders of the learned Arbitrator as affirmed by the High Court so far as the rate of interest is concerned is modified and the same is reduced from 18% to 10% per annum simple interest. | 0[ds]In the present case, the parties have agreed for the rate of interest at 18% per annum. However, since the award is of the year 1999 and considering the facts that the learned Senior counsel had left the matter to the discretion of the court. Considering the facts and circumstances of the case, in our view in exercise of the power under Article 142 of the Constitution of India, the interest at the rate of 18% awarded by the Arbitral Tribunal is to be reduced.Considering the fact that the contract relates to construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education, Chandigarh and also other facts and circumstances of the case, in exercise of our power under Article 142 of the Constitution of India, the orders of the learned Arbitrator as affirmed by the High Court so far as the rate of interest is concerned is modified and the same is reduced from 18% to 10% per annum simple interest. | 0 | 684 | 184 | ### 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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R. BANUMATHI, J. 1. Leave granted. 2. This appeal arises out of the impugned judgment and order dated 10.05.2019 passed by the High Court of Punjab and Haryana at Chandigarh in FAO No.4045 of 2003 in and by which the High Court has dismissed the appeal of the appellant herein filed under Section 37 of the Arbitration and Conciliation Act and affirmed the Award passed by the Arbitrator including with regard to the rate of interest awarded by the arbitrator at the rate of 18% per annum. 3. The respondent-M/s. Kalsi Construction Company was allotted a contract for construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education. Regarding the completion of the work, dispute arose between the parties which was referred to arbitration. Learned Arbitrator by the Award dated 31.12.1999 awarded an amount of Rs.1,17,00,000/- (Rupees one crore seventeen lakhs) against claim of Rs.10,63,00,000/- (Rupees ten crore sixty three lakhs) made by the respondent-Company. After referring to Section 31(7) of the Arbitration and Conciliation Act which vests authority to award the interest, learned Arbitrator awarded interest at the rate of 18% per annum. Challenging the award, the appeal preferred by the appellant-Institution under Section 34 of the said Act came to be dismissed which was affirmed by the High Court by the impugned judgment in the appeal preferred by the appellant under Section 37 of the said Act. 4. We have heard Mr. Sudarshan Rajan, learned counsel appearing for the appellanat-Institution and also Mr. Naresh Markanda, learned senior counsel appearing for the respondent-Company. 5. Mr. Sudarshan Rajan, learned counsel appearing for the appellant-Institution, on instruction, has submitted that the appellant-Institution is not pressing other grounds enumerated in the grounds of the appeal and is only praying for reduction of rate of interest. 6. Mr. Naresh Markanda, learned senior counsel appearing for the respondent-Company, has submitted that so far as the rate of interest, the respondent is leaving that aspect to the discretion of this Court for considering the rate of interest. However, learned Senior counsel submitted that it should be a reasonable rate of interest since the award was passed in 1999 and the respondent is yet to be paid the award amount. 7. In the absence of agreement to the contrary between the parties, Section 31(7)(a) of the said Act confers jurisdiction upon the Arbitral Tribunal to award interest unless otherwise agreed by the parties at such rate as the Arbitral Tribunal considers reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arises and the date on which the award is made. In the present case, the parties have agreed for the rate of interest at 18% per annum. However, since the award is of the year 1999 and considering the facts that the learned Senior counsel had left the matter to the discretion of the court. Considering the facts and circumstances of the case, in our view in exercise of the power under Article 142 of the Constitution of India, the interest at the rate of 18% awarded by the Arbitral Tribunal is to be reduced. 8. Considering the fact that the contract relates to construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education, Chandigarh and also other facts and circumstances of the case, in exercise of our power under Article 142 of the Constitution of India, the orders of the learned Arbitrator as affirmed by the High Court so far as the rate of interest is concerned is modified and the same is reduced from 18% to 10% per annum simple interest.
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0
### Explanation:
In the present case, the parties have agreed for the rate of interest at 18% per annum. However, since the award is of the year 1999 and considering the facts that the learned Senior counsel had left the matter to the discretion of the court. Considering the facts and circumstances of the case, in our view in exercise of the power under Article 142 of the Constitution of India, the interest at the rate of 18% awarded by the Arbitral Tribunal is to be reduced.Considering the fact that the contract relates to construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education, Chandigarh and also other facts and circumstances of the case, in exercise of our power under Article 142 of the Constitution of India, the orders of the learned Arbitrator as affirmed by the High Court so far as the rate of interest is concerned is modified and the same is reduced from 18% to 10% per annum simple interest.
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The Commissioner, Commercial Tax, U.P., Lucknow Vs. S/s Rujhan Studio | product falls within the description of Entry 21 of Schedule I. Before dealing with the nature of the product, it would be material to advert to the definition of the expression manufacture in Section 2(t) which reads as follows: 2(t) manufacture means producing, making, mining, collecting, extracting, mixing, blending, altering, ornamenting, finishing, or otherwise processing, treating or adapting any goods; but does not include such manufacture or manufacturing processes as may be prescribed; 11. The definition of the expression manufacture is in broad and comprehensive terms. The definition, inter alia, includes altering, ornamenting, finishing or otherwise processing, treating or adapting any goods. The respondent purchases textile material in bulk which is then cut to the length of a salwar kameez suit for women. The work of sewing, design and embroidery is carried out on the neck portion of the kameez or kurta. No stitching is done on the salwar. The dupatta is subjected to peco work. 12. The respondent contended before the Tax Assessment Officer that it carries on the work of cutting and embroidery in its factory. On the basis of the description which was indicated by the respondent, it is difficult to accede to the view of the Tribunal that the product will fall within the description contained in the list of exempt goods in Schedule I, more particularly, Entry 21. Entry 21 deals with silk fabric, handloom cloth of all kinds and textiles of several varieties manufactured on power loom excluding items which are described in the Second Schedule. This includes cotton fabric of all varieties, rayon or artificial silk fabric, woolen fabric made of a mixture of two or more of the listed fabrics and canvass cloth. It is evident from the work which is carried on by the respondent in its factory that the textile material which is purchased in bulk is cut to the size of a salwar kameez. The court must have regard to the common parlance meaning and understanding of the expression textile. Evidently, the respondent cuts the textile material which is then subjected to the work of embroidery on the neck portion. The textile material which is cut may not assume the character of a final article of apparel which can be worn by the consumer because the final work of stitching is not carried out by the respondent. This is done to ensure that the ultimate consumer may get the salwar kameez stitched to their specifications and dimensions. What is sold is an unstitched suit and not textile fabric. The important point to note is that as a result of the work which is carried out by the respondent in the factory, the material ceases to be textile within the meaning of Entry 21 and assumes the character of an article which has a distinct meaning and description. 13. This leaves the Court with the issue as to whether the view of the Assessing Authority was correct or whether the order of the first appellate authority should be maintained. The Assessing Authority taxed the product under the residuary entry in Schedule V and subjected it to at the rate of duty of 12.5%. The First Appellate Authority on the other hand took the view that the product should be classified under Entry 16 of Schedule II and would be subject to the rate of 4%. The residuary entry would be attracted if no other specific entry applies. The appellant had also challenged the order of the first appellate authority before the Commercial Tax Tribunal. Entry 16 of Schedule II refers to bedsheets (other than unstitched bedsheets), pillow covers and other textile made ups. This description in the English version is also in accordance with the text in Hindi. 14. Mr R K Raizada, learned senior counsel appearing on behalf of the appellant submits that the expression other textile made ups is not a stand-alone entry, but occurs in the same entry together with bedsheets (other than unstitched bedsheets) and pillow covers. Hence, the learned counsel submitted that the expression other textile made ups should be read in conjunction with the other goods which are specified in Entry 16. There is merit in the submission which has been urged, for two reasons. Firstly, the expression in Entry 16 of Schedule II is other textile made ups. A textile made up is an article which is manufactured or stitched from any type of cloth. In the present case, going by the case of the respondent, the product is unstitched because the ultimate work of stitching the salwar kameez is yet to be performed and is not carried out by the respondent. In the circumstances, the product can certainly not be called as a textile made up. Secondly, the entry other textile made ups is not a residuary entry for Schedule II, but is used in conjunction with the expression bedsheets and pillow covers. The expression other textile made ups must be read ejusdem generis with the articles which precede it and should hence comprehend goods of the same class and description. The general entry other textile made ups must receive a meaning and connotation bearing in mind the preceding items of Entry 16. Hence, it is not possible to accept the view of the first appellate authority that the product falls within the purview of Entry 16 of Schedule II. 15. In view of the above discussion, the product would fall for classification under Serial 1 of Schedule V which is a residuary entry which covers all goods except those which are mentioned and described in Schedules I, II, III and IV. 16. The High Court declined to exercise its jurisdiction in the revision which was filed by the Department. The High Court was of the view that the factual findings of the Tribunal did not warrant interference. The High Court has manifestly erred in ignoring the plain meaning of the entries in the Schedules to the UP Vat Act 2008 which have been discussed earlier in the course of this judgment. | 1[ds]11. The definition of the expression manufacture is in broad and comprehensive terms. The definition, inter alia, includes altering, ornamenting, finishing or otherwise processing, treating or adapting any goods. The respondent purchases textile material in bulk which is then cut to the length of a salwar kameez suit for women. The work of sewing, design and embroidery is carried out on the neck portion of the kameez or kurta. No stitching is done on the salwar. The dupatta is subjected to peco work.12. The respondent contended before the Tax Assessment Officer that it carries on the work of cutting and embroidery in its factory. On the basis of the description which was indicated by the respondent, it is difficult to accede to the view of the Tribunal that the product will fall within the description contained in the list of exempt goods in Schedule I, more particularly, Entry 21. Entry 21 deals with silk fabric, handloom cloth of all kinds and textiles of several varieties manufactured on power loom excluding items which are described in the Second Schedule. This includes cotton fabric of all varieties, rayon or artificial silk fabric, woolen fabric made of a mixture of two or more of the listed fabrics and canvass cloth. It is evident from the work which is carried on by the respondent in its factory that the textile material which is purchased in bulk is cut to the size of a salwar kameez. The court must have regard to the common parlance meaning and understanding of the expression textile. Evidently, the respondent cuts the textile material which is then subjected to the work of embroidery on the neck portion. The textile material which is cut may not assume the character of a final article of apparel which can be worn by the consumer because the final work of stitching is not carried out by the respondent. This is done to ensure that the ultimate consumer may get the salwar kameez stitched to their specifications and dimensions. What is sold is an unstitched suit and not textile fabric. The important point to note is that as a result of the work which is carried out by the respondent in the factory, the material ceases to be textile within the meaning of Entry 21 and assumes the character of an article which has a distinct meaning and description.The Assessing Authority taxed the product under the residuary entry in Schedule V and subjected it to at the rate of duty of 12.5%. The First Appellate Authority on the other hand took the view that the product should be classified under Entry 16 of Schedule II and would be subject to the rate of 4%. The residuary entry would be attracted if no other specific entry applies. The appellant had also challenged the order of the first appellate authority before the Commercial Tax Tribunal. Entry 16 of Schedule II refers to bedsheets (other than unstitched bedsheets), pillow covers and other textile made ups. This description in the English version is also in accordance with the text in Hindi.There is merit in the submission which has been urged, for two reasons. Firstly, the expression in Entry 16 of Schedule II is other textile made ups. A textile made up is an article which is manufactured or stitched from any type of cloth. In the present case, going by the case of the respondent, the product is unstitched because the ultimate work of stitching the salwar kameez is yet to be performed and is not carried out by the respondent. In the circumstances, the product can certainly not be called as a textile made up. Secondly, the entry other textile made ups is not a residuary entry for Schedule II, but is used in conjunction with the expression bedsheets and pillow covers. The expression other textile made ups must be read ejusdem generis with the articles which precede it and should hence comprehend goods of the same class and description. The general entry other textile made ups must receive a meaning and connotation bearing in mind the preceding items of Entry 16. Hence, it is not possible to accept the view of the first appellate authority that the product falls within the purview of Entry 16 of Schedule II.15. In view of the above discussion, the product would fall for classification under Serial 1 of Schedule V which is a residuary entry which covers all goods except those which are mentioned and described in Schedules I, II, III and IV.16. The High Court declined to exercise its jurisdiction in the revision which was filed by the Department. The High Court was of the view that the factual findings of the Tribunal did not warrant interference. The High Court has manifestly erred in ignoring the plain meaning of the entries in the Schedules to the UP Vat Act 2008 which have been discussed earlier in the course of this judgment. | 1 | 2,098 | 890 | ### 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:
product falls within the description of Entry 21 of Schedule I. Before dealing with the nature of the product, it would be material to advert to the definition of the expression manufacture in Section 2(t) which reads as follows: 2(t) manufacture means producing, making, mining, collecting, extracting, mixing, blending, altering, ornamenting, finishing, or otherwise processing, treating or adapting any goods; but does not include such manufacture or manufacturing processes as may be prescribed; 11. The definition of the expression manufacture is in broad and comprehensive terms. The definition, inter alia, includes altering, ornamenting, finishing or otherwise processing, treating or adapting any goods. The respondent purchases textile material in bulk which is then cut to the length of a salwar kameez suit for women. The work of sewing, design and embroidery is carried out on the neck portion of the kameez or kurta. No stitching is done on the salwar. The dupatta is subjected to peco work. 12. The respondent contended before the Tax Assessment Officer that it carries on the work of cutting and embroidery in its factory. On the basis of the description which was indicated by the respondent, it is difficult to accede to the view of the Tribunal that the product will fall within the description contained in the list of exempt goods in Schedule I, more particularly, Entry 21. Entry 21 deals with silk fabric, handloom cloth of all kinds and textiles of several varieties manufactured on power loom excluding items which are described in the Second Schedule. This includes cotton fabric of all varieties, rayon or artificial silk fabric, woolen fabric made of a mixture of two or more of the listed fabrics and canvass cloth. It is evident from the work which is carried on by the respondent in its factory that the textile material which is purchased in bulk is cut to the size of a salwar kameez. The court must have regard to the common parlance meaning and understanding of the expression textile. Evidently, the respondent cuts the textile material which is then subjected to the work of embroidery on the neck portion. The textile material which is cut may not assume the character of a final article of apparel which can be worn by the consumer because the final work of stitching is not carried out by the respondent. This is done to ensure that the ultimate consumer may get the salwar kameez stitched to their specifications and dimensions. What is sold is an unstitched suit and not textile fabric. The important point to note is that as a result of the work which is carried out by the respondent in the factory, the material ceases to be textile within the meaning of Entry 21 and assumes the character of an article which has a distinct meaning and description. 13. This leaves the Court with the issue as to whether the view of the Assessing Authority was correct or whether the order of the first appellate authority should be maintained. The Assessing Authority taxed the product under the residuary entry in Schedule V and subjected it to at the rate of duty of 12.5%. The First Appellate Authority on the other hand took the view that the product should be classified under Entry 16 of Schedule II and would be subject to the rate of 4%. The residuary entry would be attracted if no other specific entry applies. The appellant had also challenged the order of the first appellate authority before the Commercial Tax Tribunal. Entry 16 of Schedule II refers to bedsheets (other than unstitched bedsheets), pillow covers and other textile made ups. This description in the English version is also in accordance with the text in Hindi. 14. Mr R K Raizada, learned senior counsel appearing on behalf of the appellant submits that the expression other textile made ups is not a stand-alone entry, but occurs in the same entry together with bedsheets (other than unstitched bedsheets) and pillow covers. Hence, the learned counsel submitted that the expression other textile made ups should be read in conjunction with the other goods which are specified in Entry 16. There is merit in the submission which has been urged, for two reasons. Firstly, the expression in Entry 16 of Schedule II is other textile made ups. A textile made up is an article which is manufactured or stitched from any type of cloth. In the present case, going by the case of the respondent, the product is unstitched because the ultimate work of stitching the salwar kameez is yet to be performed and is not carried out by the respondent. In the circumstances, the product can certainly not be called as a textile made up. Secondly, the entry other textile made ups is not a residuary entry for Schedule II, but is used in conjunction with the expression bedsheets and pillow covers. The expression other textile made ups must be read ejusdem generis with the articles which precede it and should hence comprehend goods of the same class and description. The general entry other textile made ups must receive a meaning and connotation bearing in mind the preceding items of Entry 16. Hence, it is not possible to accept the view of the first appellate authority that the product falls within the purview of Entry 16 of Schedule II. 15. In view of the above discussion, the product would fall for classification under Serial 1 of Schedule V which is a residuary entry which covers all goods except those which are mentioned and described in Schedules I, II, III and IV. 16. The High Court declined to exercise its jurisdiction in the revision which was filed by the Department. The High Court was of the view that the factual findings of the Tribunal did not warrant interference. The High Court has manifestly erred in ignoring the plain meaning of the entries in the Schedules to the UP Vat Act 2008 which have been discussed earlier in the course of this judgment.
### Response:
1
### Explanation:
11. The definition of the expression manufacture is in broad and comprehensive terms. The definition, inter alia, includes altering, ornamenting, finishing or otherwise processing, treating or adapting any goods. The respondent purchases textile material in bulk which is then cut to the length of a salwar kameez suit for women. The work of sewing, design and embroidery is carried out on the neck portion of the kameez or kurta. No stitching is done on the salwar. The dupatta is subjected to peco work.12. The respondent contended before the Tax Assessment Officer that it carries on the work of cutting and embroidery in its factory. On the basis of the description which was indicated by the respondent, it is difficult to accede to the view of the Tribunal that the product will fall within the description contained in the list of exempt goods in Schedule I, more particularly, Entry 21. Entry 21 deals with silk fabric, handloom cloth of all kinds and textiles of several varieties manufactured on power loom excluding items which are described in the Second Schedule. This includes cotton fabric of all varieties, rayon or artificial silk fabric, woolen fabric made of a mixture of two or more of the listed fabrics and canvass cloth. It is evident from the work which is carried on by the respondent in its factory that the textile material which is purchased in bulk is cut to the size of a salwar kameez. The court must have regard to the common parlance meaning and understanding of the expression textile. Evidently, the respondent cuts the textile material which is then subjected to the work of embroidery on the neck portion. The textile material which is cut may not assume the character of a final article of apparel which can be worn by the consumer because the final work of stitching is not carried out by the respondent. This is done to ensure that the ultimate consumer may get the salwar kameez stitched to their specifications and dimensions. What is sold is an unstitched suit and not textile fabric. The important point to note is that as a result of the work which is carried out by the respondent in the factory, the material ceases to be textile within the meaning of Entry 21 and assumes the character of an article which has a distinct meaning and description.The Assessing Authority taxed the product under the residuary entry in Schedule V and subjected it to at the rate of duty of 12.5%. The First Appellate Authority on the other hand took the view that the product should be classified under Entry 16 of Schedule II and would be subject to the rate of 4%. The residuary entry would be attracted if no other specific entry applies. The appellant had also challenged the order of the first appellate authority before the Commercial Tax Tribunal. Entry 16 of Schedule II refers to bedsheets (other than unstitched bedsheets), pillow covers and other textile made ups. This description in the English version is also in accordance with the text in Hindi.There is merit in the submission which has been urged, for two reasons. Firstly, the expression in Entry 16 of Schedule II is other textile made ups. A textile made up is an article which is manufactured or stitched from any type of cloth. In the present case, going by the case of the respondent, the product is unstitched because the ultimate work of stitching the salwar kameez is yet to be performed and is not carried out by the respondent. In the circumstances, the product can certainly not be called as a textile made up. Secondly, the entry other textile made ups is not a residuary entry for Schedule II, but is used in conjunction with the expression bedsheets and pillow covers. The expression other textile made ups must be read ejusdem generis with the articles which precede it and should hence comprehend goods of the same class and description. The general entry other textile made ups must receive a meaning and connotation bearing in mind the preceding items of Entry 16. Hence, it is not possible to accept the view of the first appellate authority that the product falls within the purview of Entry 16 of Schedule II.15. In view of the above discussion, the product would fall for classification under Serial 1 of Schedule V which is a residuary entry which covers all goods except those which are mentioned and described in Schedules I, II, III and IV.16. The High Court declined to exercise its jurisdiction in the revision which was filed by the Department. The High Court was of the view that the factual findings of the Tribunal did not warrant interference. The High Court has manifestly erred in ignoring the plain meaning of the entries in the Schedules to the UP Vat Act 2008 which have been discussed earlier in the course of this judgment.
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Union Of India Vs. S. K. Rao | was ultra vires the Army Act, 1950, and that the action taken thereunder was without any authority. 7. In the petition Rao gave a somewhat different version of what had happened. According to him he did not assist Kumari Prakash to go away from her parents house. 8. At the hearing of the petition the only point which was urged was the validity of R.14 of the Army Rules, 1954. If this rule was intra vires the Army Act, Rao has no. case. 9. The Army Rules, 1954, including R.14, were framed in exercise of the powers conferred by S. 191 of the Army Act, 1950. Rule 14 of the Army Rules, 1954, is as follows :"(1) When after considering the reports on an officers misconduct, the Central Government is satisfied or the C-in-C is of the opinion, that the trial of the officer by a court-martial is inexpedient or impracticable but considers the further retention of the said officer in the service as undesirable, the C-in-C shall communicate the view of the Central Government or his views, as the case may be, to the officer together with all reports adverse to him and he shall be called upon to submit his explanation and defence. (2) In the event of the explanation of the officer being considered unsatisfactory by the C-in-C, or when so directed by the Central Government the case shall be submitted to the Central Government with the officers defence and the recommendation of the C-in-C as to whether the officer should be (a) dismissed from the service; or (b) removed from the service; or (c) called upon to retire; or (d) called upon to resign. (3) The Central Government, after due consideration of the reports, the officers defence, if any, and the recommendation of the C-in-C, may dismiss or remove the officer with or without pension or call upon him to retire or resign, and on his refusing to do so, the officer may be retired from or gazetted out of the service on pension or gratuity if any admissible to him." Under the aforesaid R.14, action can be taken for misconduct against an officer whose further retention in service is not considered desirable, without the officer being tried by a court-martial. Before removal he must, under the rule, be asked to submit his explanation and defence. If the explanation is found to be unsatisfactory, the Central Government has been given the power to dismiss or remove the officer. 10. Rules are framed under S. 191 of the Army Act. Sub-section (1) of S. 191 gives power to the Central Government to make rules for the purpose of carrying into effect the provisions of the Act. Sub-section (2) (a) provides :"Without prejudice to the generality of the power conferred by sub-section (1), the rules made thereunder may provide for- (a) the removal, retirement, release or discharge from the service of persons subject to this Act". 11. Sections 18 and 19 which appear in Chapter IV of the Army Act dealing with "Conditions of Service" provide as follows :Section 18 - "Every person subject to this Act shall hold office during the pleasure of the President". Section 19 - "Subject to the provisions of this Act and the rules and regulations made thereunder the Central Government may dismiss, or remove from the service, any person subject to this Act". 12. Offences under the Army Act have been dealt with in Section 34 to 70 in Chapter VI, of which Section 45 is as follows :Section 45 - "Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall on conviction by Court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned". 13. It was argued by counsel for the respondent Rao that the Army Act contained specific provisions for punishment for unbecoming conduct, viz. Section 45. To give power to the Central Government to remove an officer without being tried and convicted by Court-martial was in derogation of Section 45 of the Army Act. Rule 14, therefore, was ultra vires the Army Act. This argument is not correct. 14. Section 19 itself suggests that there should be rules, and subject to the provisions of the Act and such rules, the Central Government may dismiss or remove from the service any person subject to the Army Act. Section 191 (2) (a) specifically gives power to make a rule providing for the removal from the service of persons subject to the Act. It follows that there may be a valid rule whereunder, subject to the other provisions of the Act, the Central Government may remove a person from the service. Rule 14 is such a rule; it is, therefore, not ultra vires. 15. It was argued that the words "subject to the provisions of this Act" occurring in Section 19 makes Section 19 to Section 45, and the Central Government has thus no. power to remove a person from the service in derogation of the provisions of Section 45. But the power under Section 19 is an independent power. Although Section 19 uses the words "subject to the provisions of this Act", it speaks of removal of a person from the service. Section 45 provides that on conviction by Court-martial an officer is liable to be cashiered or to suffer such less punishment as is in this Act mentioned. For removal from service under Section 19 of the Army Act read with Rule 14 of the Army Rules, 1954, a Court-martial is not necessary. The two Sections 19 and 45 of the Act are, therefore, mutually exclusive. 16. The result is that Rule 14 of the Army Rules, 1954, is not ultra vires the Army Act. | 1[ds]This argument is not correct14. Section 19 itself suggests that there should be rules, and subject to the provisions of the Act and such rules, the Central Government may dismiss or remove from the service any person subject to the Army Act. Section 191 (2) (a) specifically gives power to make a rule providing for the removal from the service of persons subject to the Act. It follows that there may be a valid rule whereunder, subject to the other provisions of the Act, the Central Government may remove a person from the service. Rule 14 is such a rule; it is, therefore, not ultra viresBut the power under Section 19 is an independent power. Although Section 19 uses the words "subject to the provisions of this Act", it speaks of removal of a person from the service. Section 45 provides that on conviction byl an officer is liable to be cashiered or to suffer such less punishment as is in this Act mentioned. For removal from service under Section 19 of the Army Act read with Rule 14 of the Army Rules, 1954, al is not necessary. The two Sections 19 and 45 of the Act are, therefore, mutually exclusive. | 1 | 1,662 | 232 | ### 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:
was ultra vires the Army Act, 1950, and that the action taken thereunder was without any authority. 7. In the petition Rao gave a somewhat different version of what had happened. According to him he did not assist Kumari Prakash to go away from her parents house. 8. At the hearing of the petition the only point which was urged was the validity of R.14 of the Army Rules, 1954. If this rule was intra vires the Army Act, Rao has no. case. 9. The Army Rules, 1954, including R.14, were framed in exercise of the powers conferred by S. 191 of the Army Act, 1950. Rule 14 of the Army Rules, 1954, is as follows :"(1) When after considering the reports on an officers misconduct, the Central Government is satisfied or the C-in-C is of the opinion, that the trial of the officer by a court-martial is inexpedient or impracticable but considers the further retention of the said officer in the service as undesirable, the C-in-C shall communicate the view of the Central Government or his views, as the case may be, to the officer together with all reports adverse to him and he shall be called upon to submit his explanation and defence. (2) In the event of the explanation of the officer being considered unsatisfactory by the C-in-C, or when so directed by the Central Government the case shall be submitted to the Central Government with the officers defence and the recommendation of the C-in-C as to whether the officer should be (a) dismissed from the service; or (b) removed from the service; or (c) called upon to retire; or (d) called upon to resign. (3) The Central Government, after due consideration of the reports, the officers defence, if any, and the recommendation of the C-in-C, may dismiss or remove the officer with or without pension or call upon him to retire or resign, and on his refusing to do so, the officer may be retired from or gazetted out of the service on pension or gratuity if any admissible to him." Under the aforesaid R.14, action can be taken for misconduct against an officer whose further retention in service is not considered desirable, without the officer being tried by a court-martial. Before removal he must, under the rule, be asked to submit his explanation and defence. If the explanation is found to be unsatisfactory, the Central Government has been given the power to dismiss or remove the officer. 10. Rules are framed under S. 191 of the Army Act. Sub-section (1) of S. 191 gives power to the Central Government to make rules for the purpose of carrying into effect the provisions of the Act. Sub-section (2) (a) provides :"Without prejudice to the generality of the power conferred by sub-section (1), the rules made thereunder may provide for- (a) the removal, retirement, release or discharge from the service of persons subject to this Act". 11. Sections 18 and 19 which appear in Chapter IV of the Army Act dealing with "Conditions of Service" provide as follows :Section 18 - "Every person subject to this Act shall hold office during the pleasure of the President". Section 19 - "Subject to the provisions of this Act and the rules and regulations made thereunder the Central Government may dismiss, or remove from the service, any person subject to this Act". 12. Offences under the Army Act have been dealt with in Section 34 to 70 in Chapter VI, of which Section 45 is as follows :Section 45 - "Any officer, junior commissioned officer or warrant officer who behaves in a manner unbecoming his position and the character expected of him shall on conviction by Court-martial, if he is an officer, be liable to be cashiered or to suffer such less punishment as is in this Act mentioned; and, if he is a junior commissioned officer or a warrant officer, be liable to be dismissed or to suffer such less punishment as is in this Act mentioned". 13. It was argued by counsel for the respondent Rao that the Army Act contained specific provisions for punishment for unbecoming conduct, viz. Section 45. To give power to the Central Government to remove an officer without being tried and convicted by Court-martial was in derogation of Section 45 of the Army Act. Rule 14, therefore, was ultra vires the Army Act. This argument is not correct. 14. Section 19 itself suggests that there should be rules, and subject to the provisions of the Act and such rules, the Central Government may dismiss or remove from the service any person subject to the Army Act. Section 191 (2) (a) specifically gives power to make a rule providing for the removal from the service of persons subject to the Act. It follows that there may be a valid rule whereunder, subject to the other provisions of the Act, the Central Government may remove a person from the service. Rule 14 is such a rule; it is, therefore, not ultra vires. 15. It was argued that the words "subject to the provisions of this Act" occurring in Section 19 makes Section 19 to Section 45, and the Central Government has thus no. power to remove a person from the service in derogation of the provisions of Section 45. But the power under Section 19 is an independent power. Although Section 19 uses the words "subject to the provisions of this Act", it speaks of removal of a person from the service. Section 45 provides that on conviction by Court-martial an officer is liable to be cashiered or to suffer such less punishment as is in this Act mentioned. For removal from service under Section 19 of the Army Act read with Rule 14 of the Army Rules, 1954, a Court-martial is not necessary. The two Sections 19 and 45 of the Act are, therefore, mutually exclusive. 16. The result is that Rule 14 of the Army Rules, 1954, is not ultra vires the Army Act.
### Response:
1
### Explanation:
This argument is not correct14. Section 19 itself suggests that there should be rules, and subject to the provisions of the Act and such rules, the Central Government may dismiss or remove from the service any person subject to the Army Act. Section 191 (2) (a) specifically gives power to make a rule providing for the removal from the service of persons subject to the Act. It follows that there may be a valid rule whereunder, subject to the other provisions of the Act, the Central Government may remove a person from the service. Rule 14 is such a rule; it is, therefore, not ultra viresBut the power under Section 19 is an independent power. Although Section 19 uses the words "subject to the provisions of this Act", it speaks of removal of a person from the service. Section 45 provides that on conviction byl an officer is liable to be cashiered or to suffer such less punishment as is in this Act mentioned. For removal from service under Section 19 of the Army Act read with Rule 14 of the Army Rules, 1954, al is not necessary. The two Sections 19 and 45 of the Act are, therefore, mutually exclusive.
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State Of Madhya Pradesh And Ors Vs. Home Decorators And Finance (Pvt.) Ltd. And Anr | had dexterously prepared a panchanama at the spot. He determined the amount of tax recoverable on the said collections, and issued to the respondents two separate notices on July 9, 1974 demanding the tax along with the duty surcharge thereon for the collections made on July 7 and 8, 1974 respectively. The total amount so demanded by both the notice was Rs. 35, 429.76. 4. The respondents challenged the notices by a writ petition under Article 226 of the Constitution before the High Court. The High Court by the impugned decision held that the assessment of the tax made by the officer was arbitrary because, firstly, there was no allegation that the invitation cards which were issued were sold, and secondly, the subscription fee of Rs. 10 recovered from each member was not divided by 10 which it was necessary to do, for the entertainment tax could be collected only on Re 1 per year for the next 10 years. The High Court, therefore, allowed the writ petition and quashed the notices. It also appears that the respondents had paid Rs. 5000 in part payment of the amount demanded under the notices. The High Court, therefore, also directed the appellants to refund the said amount as being "exacted" from the respondents. 5. We are afraid, the High Court completely missed the crucial point and, therefore, misdirected itself. The admitted facts as stated above were that the respondents had collected in all Rs. 12 from each of members out of which Rs. 2 was non-refundable being the so called admission fee and Rs. 10 were refundable only after 10 years. The "members" were not issued the membership cards nor were they left either with any trace of their membership forms or receipts for the payments they had made. Instead they were handed over entrance slips during interval which were collected at the door. The result was that even if the "members" were to claim an entry for programmes, if any in future, they would not have been able to do so. As it happened further, in fact, no programmes were ever staged at any time thereafter. The so called "Nav Nirman Group" did not have any legal existence. It was an amorphous body. The rules and regulations framed for the said body further showed some interesting features as follows: "For the purpose of Prizes there shall be Five Sub-groups of one lakh members each. After every Sub-group of one lakh members there shall be total 4280 prizes divided into 20 half-yearly draws and valuing total amount of Rs. 5 lakhs. The date of the First Draw will be announced through Newspapers Every member, irrespective of whether he has received any prize(s) or not shall be entitled to the refund of his deposit of Rs. 10 after the maturity of the duration of group, i.e., 10 years, along with a bonus of Rs. 2 on surrender of the official Receipt-cum-Membership Evidence issued by the Company. Duration of the Group shall be commenced from the date of the First Draw For the purposes of Bumper Draw there shall be 50 Sub-Groups of 10, 000 continued members each and after every such sub-group there shall carry various valuable prizes to the tune of about Rs. 2, 50, 000. Members of incomplete sub-group of 10, 000 continued members shall be given an extra bonus of Rs. 25 in the shape of articles, the list of which shall be declared nearing maturity of the Group, instead of participating in Bumper DrawEvery member will be issued a receipt while being admitted as a member and the number of such receipt shall be his membership number also. No separate pass book will be issued. The receipt itself shall be treated as final and conclusive evidence of membership After the completion of First sub-group one lakh members the First Draw shall be conducted, but in case total membership of the sub-group does not attain the target necessary to form the sub-group before date of the draw (which shall be announced through Newspapers) then the remaining membership number of the sub-group shall be treated as the Companys membership numbers and any prize/benefit accruing through these numbers as a result of the draw shall remain the Companys property. The Company may allot such membership numbers subsequently to the new applicants for the remaining period with the subsequent benefits only. The same rule apply to every further sub-group of one lakh members Membership of the Group is for 10 years and cannot be cancelled or withdrawn by the member before maturity of the Group. Prizes and Film Star show are added incentive and not Part of the Scheme and are not binding on the Company under circumstance beyond control The management may change any article of the declared prize looking to the time and circumstances prevailing at the time of the particular draw The management of the Company reserves the right to add, alter, or amend the rules and regulations as and when necessary for the efficient and proper conduct of the group as well as in compliance with the government rules and regulations which may come in force hereafter and the same shall be binding on all the members." It will be apparent from the scheme that it was not meant for promoting music. It was a pure business proposition meant to collect money and earn profits, and it was to be used as a device to evade the entertainment duty. The receipts and/or the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door. In the circumstances, whatever be the description given to the receipts/cards they were liable to the entertainment duty. The impugned notices were, therefore, properly issued by the appellants. We are, therefore, unable to accept the reasoning of the High Court that Rs. 10 collected by the respondents were the membership subscription or that the duty could not have been collected at a time on Rs. 10. | 1[ds]5. We are afraid, the High Court completely missed the crucial point and, therefore, misdirected itself. The admitted facts as stated above were that the respondents had collected in all Rs. 12 from each of members out of which Rs. 2 was non-refundable being the so called admission fee and Rs. 10 were refundable only after 10 years. The "members" were not issued the membership cards nor were they left either with any trace of their membership forms or receipts for the payments they had made. Instead they were handed over entrance slips during interval which were collected at the door. The result was that even if the "members" were to claim an entry for programmes, if any in future, they would not have been able to do so. As it happened further, in fact, no programmes were ever staged at any time thereafter. The so called "Nav Nirman Group" did not have any legalwill be apparent from the scheme that it was not meant for promoting music. It was a pure business proposition meant to collect money and earn profits, and it was to be used as a device to evade the entertainment duty. The receipts and/or the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door. In the circumstances, whatever be the description given to the receipts/cards they were liable to the entertainment duty. The impugned notices were, therefore, properly issued by the appellants. We are, therefore, unable to accept the reasoning of the High Court that Rs. 10 collected by the respondents were the membership subscription or that the duty could not have been collected at a time on Rs. 10 | 1 | 1,689 | 326 | ### 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:
had dexterously prepared a panchanama at the spot. He determined the amount of tax recoverable on the said collections, and issued to the respondents two separate notices on July 9, 1974 demanding the tax along with the duty surcharge thereon for the collections made on July 7 and 8, 1974 respectively. The total amount so demanded by both the notice was Rs. 35, 429.76. 4. The respondents challenged the notices by a writ petition under Article 226 of the Constitution before the High Court. The High Court by the impugned decision held that the assessment of the tax made by the officer was arbitrary because, firstly, there was no allegation that the invitation cards which were issued were sold, and secondly, the subscription fee of Rs. 10 recovered from each member was not divided by 10 which it was necessary to do, for the entertainment tax could be collected only on Re 1 per year for the next 10 years. The High Court, therefore, allowed the writ petition and quashed the notices. It also appears that the respondents had paid Rs. 5000 in part payment of the amount demanded under the notices. The High Court, therefore, also directed the appellants to refund the said amount as being "exacted" from the respondents. 5. We are afraid, the High Court completely missed the crucial point and, therefore, misdirected itself. The admitted facts as stated above were that the respondents had collected in all Rs. 12 from each of members out of which Rs. 2 was non-refundable being the so called admission fee and Rs. 10 were refundable only after 10 years. The "members" were not issued the membership cards nor were they left either with any trace of their membership forms or receipts for the payments they had made. Instead they were handed over entrance slips during interval which were collected at the door. The result was that even if the "members" were to claim an entry for programmes, if any in future, they would not have been able to do so. As it happened further, in fact, no programmes were ever staged at any time thereafter. The so called "Nav Nirman Group" did not have any legal existence. It was an amorphous body. The rules and regulations framed for the said body further showed some interesting features as follows: "For the purpose of Prizes there shall be Five Sub-groups of one lakh members each. After every Sub-group of one lakh members there shall be total 4280 prizes divided into 20 half-yearly draws and valuing total amount of Rs. 5 lakhs. The date of the First Draw will be announced through Newspapers Every member, irrespective of whether he has received any prize(s) or not shall be entitled to the refund of his deposit of Rs. 10 after the maturity of the duration of group, i.e., 10 years, along with a bonus of Rs. 2 on surrender of the official Receipt-cum-Membership Evidence issued by the Company. Duration of the Group shall be commenced from the date of the First Draw For the purposes of Bumper Draw there shall be 50 Sub-Groups of 10, 000 continued members each and after every such sub-group there shall carry various valuable prizes to the tune of about Rs. 2, 50, 000. Members of incomplete sub-group of 10, 000 continued members shall be given an extra bonus of Rs. 25 in the shape of articles, the list of which shall be declared nearing maturity of the Group, instead of participating in Bumper DrawEvery member will be issued a receipt while being admitted as a member and the number of such receipt shall be his membership number also. No separate pass book will be issued. The receipt itself shall be treated as final and conclusive evidence of membership After the completion of First sub-group one lakh members the First Draw shall be conducted, but in case total membership of the sub-group does not attain the target necessary to form the sub-group before date of the draw (which shall be announced through Newspapers) then the remaining membership number of the sub-group shall be treated as the Companys membership numbers and any prize/benefit accruing through these numbers as a result of the draw shall remain the Companys property. The Company may allot such membership numbers subsequently to the new applicants for the remaining period with the subsequent benefits only. The same rule apply to every further sub-group of one lakh members Membership of the Group is for 10 years and cannot be cancelled or withdrawn by the member before maturity of the Group. Prizes and Film Star show are added incentive and not Part of the Scheme and are not binding on the Company under circumstance beyond control The management may change any article of the declared prize looking to the time and circumstances prevailing at the time of the particular draw The management of the Company reserves the right to add, alter, or amend the rules and regulations as and when necessary for the efficient and proper conduct of the group as well as in compliance with the government rules and regulations which may come in force hereafter and the same shall be binding on all the members." It will be apparent from the scheme that it was not meant for promoting music. It was a pure business proposition meant to collect money and earn profits, and it was to be used as a device to evade the entertainment duty. The receipts and/or the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door. In the circumstances, whatever be the description given to the receipts/cards they were liable to the entertainment duty. The impugned notices were, therefore, properly issued by the appellants. We are, therefore, unable to accept the reasoning of the High Court that Rs. 10 collected by the respondents were the membership subscription or that the duty could not have been collected at a time on Rs. 10.
### Response:
1
### Explanation:
5. We are afraid, the High Court completely missed the crucial point and, therefore, misdirected itself. The admitted facts as stated above were that the respondents had collected in all Rs. 12 from each of members out of which Rs. 2 was non-refundable being the so called admission fee and Rs. 10 were refundable only after 10 years. The "members" were not issued the membership cards nor were they left either with any trace of their membership forms or receipts for the payments they had made. Instead they were handed over entrance slips during interval which were collected at the door. The result was that even if the "members" were to claim an entry for programmes, if any in future, they would not have been able to do so. As it happened further, in fact, no programmes were ever staged at any time thereafter. The so called "Nav Nirman Group" did not have any legalwill be apparent from the scheme that it was not meant for promoting music. It was a pure business proposition meant to collect money and earn profits, and it was to be used as a device to evade the entertainment duty. The receipts and/or the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door. In the circumstances, whatever be the description given to the receipts/cards they were liable to the entertainment duty. The impugned notices were, therefore, properly issued by the appellants. We are, therefore, unable to accept the reasoning of the High Court that Rs. 10 collected by the respondents were the membership subscription or that the duty could not have been collected at a time on Rs. 10
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Workmen of Assam Co. Ltd Vs. Assam Co. Ltd | other industries. It may however be noted that the company in the instant case-is more than a century old one faring well all through and has thus been so far as prosperous one and on a sound footing and as such it is expected to have built up a substantial reserve."7. The Labour Appellate Tribunal maintained this higher rate of return on capital on the ground."of its being exposed to greater risks than any other industry.......namely, weather, pests in the plants and gradual deterioration of the soil over which no man has any control."These additional risk factors are no doubt present in an industry connected with agriculture like the tea industry and in our opinion they justify the giving of a higher rate of return on capital.8. Instead of 4% allowed by the formula the Industrial Tribunal fixed the return on reserves at 5% on the ground of its "being sufficient to guard the interests of the company" but the Labour Appellate Tribunal increased it to 6% to meet replacements and rehabilitation charges since the "usual method of calculating these charges is not possible in the present case" and"we are to see that the industry does not suffer for want of replacement and rehabilitation funds and must provide such funds in some other way, namely, by allowing a return on the working capital at higher rates."In the absence of any claim in the respondents Written Statement for rehabilitation or any figures for determining this amount, this extra one per cent, is insupportable. It is not a case where a claim could not be made or figures could not have been given at the proper stage. The additional one per cent, cannot therefore be allowed. In our opinion the reasons given by the Industrial Tribunal sufficiently support the giving of 5% on the reserves as being fair considering the risks of the tea industry which is exposed to various adverse circumstances and elements.The Industrial Tribunal has not acted unreasonably nor in disregard of any accepted principles in calculating the return on reserves at 5% and we see no cogent reason for varying this rate.9. The respondent has, since, 1926, been paying bonus to its employees according to a scheme called the "unit scheme" which according to the Industrial Tribunal has the merit of being more rational and gives incentive to industrious habits and efficiency leading to more production. The Labour Appellate Tribunal did not go into the merits of the scheme but ordered payment according to it. Under this scheme units are credited to each workman, taking into consideration the importance of the job he holds, the wages he gets and the number of years he has been employed in that particular job. The value of units so awarded thus vary commensurate with considerations of efficiency and experience. The establishment is divided into twelve categories and the medical staff into three each based on the relative importance of the nature of work done by a workman. Thus in the descending order of their importance the jobs are classified as :1. Head Mohori; 2. Head Clerk3. Divisional Mohori; 4. Land Mohori; Hazaria Mohori;5. Kamjari Mohori;6. Godown Mohori; 7. 2nd Tea House Mohori; 2nd Kerani; 2nd Hazaria Mohori;8. 2nd Godown Mohori;9. Gunti Mohori;10. 3rd Tea House Mohori; 11. Mondal;12. Apprentices.10. Units would thus be awarded to workmen in the particular category they are in and the more qualified the worker the better his work and the higher his wage, the higher the number of units be would be entitled to. The amount available for distribution as bonus is divided by the aggregate number of units of all the workmen participating in the scheme and each worker would be entitled to a multiple of the amount payable on one unit and the units to his credit.It appears to us that the estimate of the Industrial Tribunal as to the suitability of the scheme was fully justified and payment of bonus in accordance with this scheme will not only result in fair distribution of bonus but would also lead to improvement in the quality and quantity of work. This scheme is not to be confused with production bonus though it has the merit of combining the fair distribution of the surplus available and the maintenance of efficiency in the establishment.11. Taking the figures on the basis of the award made by the Industrial Tribunal we find that Rs. 7,64,608 would be the surplus for the year 1950, Rs. 77,823 for 1951 and a deficit of Rs. 10 lacs for the years 1952. The total sum available for three years will be nil. On the basis of the claim which counsel for the appellant has made before us i.e. two months wages, we find that the amount of bonus required for the members of the staff for the year 1950 will be one sixth of Rupees 4,63,095 and for the year 1951, one sixth of Rs. 4,83,893 and for 1952 one sixth of Rupees 5,31,202 which works out to Rs. 77,182 for 1950. Rs. 80,647 for 1951 and Rs. 88,533 for 1952. The amounts required for the artisans further increase these figures. No doubt on the calculations which have now been made the appellant may justify the claim of two months bonus for the year 1950 but the same cannot be said in regard to the claim for the years1951 and 1952 because of the available surplus which is only Rs. 77,823 for 1951 and there is a deficit of about 10 lacs of rupees for the year 1952. Taking all these figures into consideration, we are of the opinion that the amounts awarded by the Industrial Tribunal are fair and proper. As the Labour Appellate Tribunal allowed depreciation and rehabilitation on an erroneous basis, we would set aside the order of the Labour Appellate Tribunal and would restore that of the Industrial Tribunal with this modification that the Respondent shall make available the additional amount required for payment of the proportional bonus to the artisans. | 1[ds]5. The principles on which the ascertainment of the surplus on the basis of which bonus becomes determinable and distributable have been laid down by this Court inSree Meenakshi Mills v. Their Workmen,A I R 1958 S C 153 at p. 156 (A). The formula there laid down issurplus has to be ascertained after providing from the gross profits for (1) depreciation, (2) rehabilitation, (3) return at 6 per cent, on the paid up capital (4) return on the working capital at a lesser but reasonable rate, and (5) for an estimated amount in respect of the payment of incomethis formula the depreciation allowable in cases arising under the Industrial Disputes Act is the normal depreciation including shift depreciation. We did not understand counsel for the respondent to contend that there was anything in the formula which was wrong in principle but that it had to be adjusted to suit the circumstances of the Tea industry. No circumstances were, however, given by him which would make it unfair to apply the formula, nor were any figures or particulars furnished for varying it in regard tothe figures on the basis of the award made by the Industrial Tribunal we find that Rs. 7,64,608 would be the surplus for the year 1950, Rs. 77,823 for 1951 and a deficit of Rs. 10 lacs for the years 1952. The total sum available for three years will be nil. On the basis of the claim which counsel for the appellant has made before us i.e. two months wages, we find that the amount of bonus required for the members of the staff for the year 1950 will be one sixth of Rupees 4,63,095 and for the year 1951, one sixth of Rs. 4,83,893 and for 1952 one sixth of Rupees 5,31,202 which works out to Rs. 77,182 for 1950. Rs. 80,647 for 1951 and Rs. 88,533 for 1952. The amounts required for the artisans further increase these figures. No doubt on the calculations which have now been made the appellant may justify the claim of two months bonus for the year 1950 but the same cannot be said in regard to the claim for the years1951 and 1952 because of the available surplus which is only Rs. 77,823 for 1951 and there is a deficit of about 10 lacs of rupees for the year 1952. Taking all these figures into consideration, we are of the opinion that the amounts awarded by the Industrial Tribunal are fair and proper. As the Labour Appellate Tribunal allowed depreciation and rehabilitation on an erroneous basis, we would set aside the order of the Labour Appellate Tribunal and would restore that of the Industrial Tribunal with this modification that the Respondent shall make available the additional amount required for payment of the proportional bonus to the artisans. | 1 | 1,960 | 520 | ### 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:
other industries. It may however be noted that the company in the instant case-is more than a century old one faring well all through and has thus been so far as prosperous one and on a sound footing and as such it is expected to have built up a substantial reserve."7. The Labour Appellate Tribunal maintained this higher rate of return on capital on the ground."of its being exposed to greater risks than any other industry.......namely, weather, pests in the plants and gradual deterioration of the soil over which no man has any control."These additional risk factors are no doubt present in an industry connected with agriculture like the tea industry and in our opinion they justify the giving of a higher rate of return on capital.8. Instead of 4% allowed by the formula the Industrial Tribunal fixed the return on reserves at 5% on the ground of its "being sufficient to guard the interests of the company" but the Labour Appellate Tribunal increased it to 6% to meet replacements and rehabilitation charges since the "usual method of calculating these charges is not possible in the present case" and"we are to see that the industry does not suffer for want of replacement and rehabilitation funds and must provide such funds in some other way, namely, by allowing a return on the working capital at higher rates."In the absence of any claim in the respondents Written Statement for rehabilitation or any figures for determining this amount, this extra one per cent, is insupportable. It is not a case where a claim could not be made or figures could not have been given at the proper stage. The additional one per cent, cannot therefore be allowed. In our opinion the reasons given by the Industrial Tribunal sufficiently support the giving of 5% on the reserves as being fair considering the risks of the tea industry which is exposed to various adverse circumstances and elements.The Industrial Tribunal has not acted unreasonably nor in disregard of any accepted principles in calculating the return on reserves at 5% and we see no cogent reason for varying this rate.9. The respondent has, since, 1926, been paying bonus to its employees according to a scheme called the "unit scheme" which according to the Industrial Tribunal has the merit of being more rational and gives incentive to industrious habits and efficiency leading to more production. The Labour Appellate Tribunal did not go into the merits of the scheme but ordered payment according to it. Under this scheme units are credited to each workman, taking into consideration the importance of the job he holds, the wages he gets and the number of years he has been employed in that particular job. The value of units so awarded thus vary commensurate with considerations of efficiency and experience. The establishment is divided into twelve categories and the medical staff into three each based on the relative importance of the nature of work done by a workman. Thus in the descending order of their importance the jobs are classified as :1. Head Mohori; 2. Head Clerk3. Divisional Mohori; 4. Land Mohori; Hazaria Mohori;5. Kamjari Mohori;6. Godown Mohori; 7. 2nd Tea House Mohori; 2nd Kerani; 2nd Hazaria Mohori;8. 2nd Godown Mohori;9. Gunti Mohori;10. 3rd Tea House Mohori; 11. Mondal;12. Apprentices.10. Units would thus be awarded to workmen in the particular category they are in and the more qualified the worker the better his work and the higher his wage, the higher the number of units be would be entitled to. The amount available for distribution as bonus is divided by the aggregate number of units of all the workmen participating in the scheme and each worker would be entitled to a multiple of the amount payable on one unit and the units to his credit.It appears to us that the estimate of the Industrial Tribunal as to the suitability of the scheme was fully justified and payment of bonus in accordance with this scheme will not only result in fair distribution of bonus but would also lead to improvement in the quality and quantity of work. This scheme is not to be confused with production bonus though it has the merit of combining the fair distribution of the surplus available and the maintenance of efficiency in the establishment.11. Taking the figures on the basis of the award made by the Industrial Tribunal we find that Rs. 7,64,608 would be the surplus for the year 1950, Rs. 77,823 for 1951 and a deficit of Rs. 10 lacs for the years 1952. The total sum available for three years will be nil. On the basis of the claim which counsel for the appellant has made before us i.e. two months wages, we find that the amount of bonus required for the members of the staff for the year 1950 will be one sixth of Rupees 4,63,095 and for the year 1951, one sixth of Rs. 4,83,893 and for 1952 one sixth of Rupees 5,31,202 which works out to Rs. 77,182 for 1950. Rs. 80,647 for 1951 and Rs. 88,533 for 1952. The amounts required for the artisans further increase these figures. No doubt on the calculations which have now been made the appellant may justify the claim of two months bonus for the year 1950 but the same cannot be said in regard to the claim for the years1951 and 1952 because of the available surplus which is only Rs. 77,823 for 1951 and there is a deficit of about 10 lacs of rupees for the year 1952. Taking all these figures into consideration, we are of the opinion that the amounts awarded by the Industrial Tribunal are fair and proper. As the Labour Appellate Tribunal allowed depreciation and rehabilitation on an erroneous basis, we would set aside the order of the Labour Appellate Tribunal and would restore that of the Industrial Tribunal with this modification that the Respondent shall make available the additional amount required for payment of the proportional bonus to the artisans.
### Response:
1
### Explanation:
5. The principles on which the ascertainment of the surplus on the basis of which bonus becomes determinable and distributable have been laid down by this Court inSree Meenakshi Mills v. Their Workmen,A I R 1958 S C 153 at p. 156 (A). The formula there laid down issurplus has to be ascertained after providing from the gross profits for (1) depreciation, (2) rehabilitation, (3) return at 6 per cent, on the paid up capital (4) return on the working capital at a lesser but reasonable rate, and (5) for an estimated amount in respect of the payment of incomethis formula the depreciation allowable in cases arising under the Industrial Disputes Act is the normal depreciation including shift depreciation. We did not understand counsel for the respondent to contend that there was anything in the formula which was wrong in principle but that it had to be adjusted to suit the circumstances of the Tea industry. No circumstances were, however, given by him which would make it unfair to apply the formula, nor were any figures or particulars furnished for varying it in regard tothe figures on the basis of the award made by the Industrial Tribunal we find that Rs. 7,64,608 would be the surplus for the year 1950, Rs. 77,823 for 1951 and a deficit of Rs. 10 lacs for the years 1952. The total sum available for three years will be nil. On the basis of the claim which counsel for the appellant has made before us i.e. two months wages, we find that the amount of bonus required for the members of the staff for the year 1950 will be one sixth of Rupees 4,63,095 and for the year 1951, one sixth of Rs. 4,83,893 and for 1952 one sixth of Rupees 5,31,202 which works out to Rs. 77,182 for 1950. Rs. 80,647 for 1951 and Rs. 88,533 for 1952. The amounts required for the artisans further increase these figures. No doubt on the calculations which have now been made the appellant may justify the claim of two months bonus for the year 1950 but the same cannot be said in regard to the claim for the years1951 and 1952 because of the available surplus which is only Rs. 77,823 for 1951 and there is a deficit of about 10 lacs of rupees for the year 1952. Taking all these figures into consideration, we are of the opinion that the amounts awarded by the Industrial Tribunal are fair and proper. As the Labour Appellate Tribunal allowed depreciation and rehabilitation on an erroneous basis, we would set aside the order of the Labour Appellate Tribunal and would restore that of the Industrial Tribunal with this modification that the Respondent shall make available the additional amount required for payment of the proportional bonus to the artisans.
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M/S. SKJ COKE INDUSTRIES LTD Vs. COAL INDIA LTD AND ORS | a linked units. Such treatment as a linked unit do not mean grant of actual linkage. So, Mahabir Coke cannot claim to be a linked unit. The advantage of being treated as a linked unit was that Mahabir Coke will be assured for monthly supply of 4000 MT coal per month by NEC. The said resolution/decision also provides that the price to be charged for supply of low ash coal to Mahabir Coke will be decided by NEC on the basis of price prevalent at any point of time i.e. current price prevailing at the time of supply. 17. There are nearly 200 Cokery units, in India out of them only three cokery unit, including cokery unit of Mahabir Coke, are located at Assam. Mahabir Coke, along with other two cokery units have been getting low ash Assam coal which is of superior grade than what the other cookeries of all over India have been getting from their respective coal companies. Normally all other cookeries are getting the higher ash content coal. The other cookeries located outside Assam get coal having ash content of 25 – 30%, whereas the cookeries located in Assam are getting low ash coal of NEC having ash content of only 7%. The other cookeries located outside Assam take supply of low ash coal from NEC, under LSS for blending the same with higher ash content coal which they have been getting from other coal companies. All other cookeries including three cookeries of Assam, who are buying the same low ash coal as supplied to Mahabir Coke, have been paying the LSS price as notified from time to time. 12. Learned counsel for the appellants has brought to our notice the following observations of the Division Bench in different parts of the judgment:- At the time the Linkage Committee stipulated that the price payable by the appellant company would be as per the prevailing rate to be decided by the fifth Respondent, no coal company had any authority to supersede the price fixed by the Central Government by a notification issued under the Colliery Control Order, 1945. At the highest, such conditional treatment of the appellant company as a linked unit, could come into play only if the price of coal was deregulated by the Central Government; ipso facto by reason of the Linkage Committee decision of November 16, 1995 the appellant company could not be charged at a rate in derogation of what the Central Government notified. xx xx xx xx xx xx The price of Assam coal at Rs. 741/- per MT (subject to the variation on account of ash content) became inoperative upon the notification of March 12, 1997. xx xx xx xx xx xx The appellants remain liable to pay the difference in price on the basis of price fixed by the respondents subsequent to the notification of March 12, 1997. 13. In our opinion, the exemption granted by the Central Government by the notification dated 9 th January, 1996 to Coal India and their subsidiaries from the provisions of Clauses 4, 4A and 4B of the 1945 Control Order in respect of sale of coal under LSS, the fetter imposed by the aforesaid notification of June 1994 got effectively removed. Specific stand taken by the respondents is that the linking of the first appellant was only in respect of the quantum of coal to be obtained by them and they were not entitled to price benefits of linked consumers. For the appellants, it was only a case of allocation. Thus, the point of time from when the appellants became liable to pay LSS rate would be the time when LSS price was raised after 9 th January 1996. Prior to that date, we have already reproduced the coal companies submission that the linked price and non-linked price had remained the same. So far as the aforesaid observations in the impugned judgment is concerned, such reasoning does not appear to us to be correct. But our views on this point would not advance the case of the appellants. That is so because in our opinion, it was within the power of the NEC to enhance the price for LSS consumers upon CIL and their subsidiaries being exempted from Clause 4 of the 1945 Control Order on and from 9 th January 1996. 14. It appears that a liberalised pricing system has been prevailing since the year 1993. We find no reason to disbelieve the coal companies when they assert that there was only allocation of coal in favour of the first appellant. Thus the appellants did not have vested legal right to preferential pricing as linked consumers. The 9 th January 1996 notification empowered Coal India Ltd. and their subsidiaries to charge price to consumers beyond that notified on 16 th June 1994 in respect of Assam coal. The appellants were in the non- core sector. Around that point of time only parity between LSS price and linked price was broken and the first appellant was required to pay the LSS price. So far as allocation is concerned, the agenda 24 of the 85 th meeting of the linkage committee retained the supply volume. But that Resolution is in tune with the NECs stand taken before us that LSS price ought to be charged to the appellants. The factual argument of the appellants that the two other cokery units in Assam were not linked, are of no relevance. The appellants have not been able to sustain a case before us that their linking agreement covered both allocation and pricing as is the case of other linked consumers. So far as the other cokery units are concerned, it has been clarified by the learned counsel for the coal companies that they lift coal of high ash content between 25-30% which would automatically take them out of the price advantage specified in Table II of the 1994 notification. We accordingly do not find any reason to set aside the judgment of the Division Bench. | 0[ds]We also confirm this view of the Appellate Bench as we find such view to be the correct view so far as applicability of the ratio of the case of Ashoka Smokeless Coal India (supra) is concernedFrom the said Resolution, however, we find a specific agenda item concerning the first appellant, and the Resolution as adopted specifically stipulates that the price to be charged from the appellants was to be decided by the NEC Assam as prevalent at any point of time. In view of this specific treatment of pricing along with reference to the first appellant as a linked unit, in our opinion, said Resolution has to be construed to mean that treatment of the appellant as a linked unit was for the purpose of regular supply of coal and the pricing factor was separated from such deemed linking. This would be apparent from the decision taken against agenda item no.23, in which reference has been made to SSF units and cokery units which had been allocated (emphasis supplied) coal, and it was these units which were to be treated as linked units. The distinction between allocation and linking clearly emerges from the said decision of the linking committee. It is a fact that the first appellants treatment as a linked unit was a fiction. But such fiction was replaced by reality on the basis of a specific provision in the Resolution (agenda item no.24) so far as pricing is concerned. As the Resolution dealt with linking and pricing separately, the fictional linking could not be extended to actual pricing13. In our opinion, the exemption granted by the Central Government by the notification dated 9 th January, 1996 to Coal India and their subsidiaries from the provisions of Clauses 4, 4A and 4B of the 1945 Control Order in respect of sale of coal under LSS, the fetter imposed by the aforesaid notification of June 1994 got effectively removed. Specific stand taken by the respondents is that the linking of the first appellant was only in respect of the quantum of coal to be obtained by them and they were not entitled to price benefits of linked consumers. For the appellants, it was only a case of allocation. Thus, the point of time from when the appellants became liable to pay LSS rate would be the time when LSS price was raised after 9 th January 1996. Prior to that date, we have already reproduced the coal companies submission that the linked price and non-linked price had remained the same. So far as the aforesaid observations in the impugned judgment is concerned, such reasoning does not appear to us to be correct. But our views on this point would not advance the case of the appellants. That is so because in our opinion, it was within the power of the NEC to enhance the price for LSS consumers upon CIL and their subsidiaries being exempted from Clause 4 of the 1945 Control Order on and from 9 th January 199614. It appears that a liberalised pricing system has been prevailing since the year 1993. We find no reason to disbelieve the coal companies when they assert that there was only allocation of coal in favour of the first appellant. Thus the appellants did not have vested legal right to preferential pricing as linked consumers. The 9 th January 1996 notification empowered Coal India Ltd. and their subsidiaries to charge price to consumers beyond that notified on 16 th June 1994 in respect of Assam coal. The appellants were in the non- core sector. Around that point of time only parity between LSS price and linked price was broken and the first appellant was required to pay the LSS price. So far as allocation is concerned, the agenda 24 of the 85 th meeting of the linkage committee retained the supply volume. But that Resolution is in tune with the NECs stand taken before us that LSS price ought to be charged to the appellants. The factual argument of the appellants that the two other cokery units in Assam were not linked, are of no relevance. The appellants have not been able to sustain a case before us that their linking agreement covered both allocation and pricing as is the case of other linked consumers. So far as the other cokery units are concerned, it has been clarified by the learned counsel for the coal companies that they lift coal of high ash content between 25-30% which would automatically take them out of the price advantage specified in Table II of the 1994 notification. We accordingly do not find any reason to set aside the judgment of the Division Bench. | 0 | 4,298 | 838 | ### Instruction:
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a linked units. Such treatment as a linked unit do not mean grant of actual linkage. So, Mahabir Coke cannot claim to be a linked unit. The advantage of being treated as a linked unit was that Mahabir Coke will be assured for monthly supply of 4000 MT coal per month by NEC. The said resolution/decision also provides that the price to be charged for supply of low ash coal to Mahabir Coke will be decided by NEC on the basis of price prevalent at any point of time i.e. current price prevailing at the time of supply. 17. There are nearly 200 Cokery units, in India out of them only three cokery unit, including cokery unit of Mahabir Coke, are located at Assam. Mahabir Coke, along with other two cokery units have been getting low ash Assam coal which is of superior grade than what the other cookeries of all over India have been getting from their respective coal companies. Normally all other cookeries are getting the higher ash content coal. The other cookeries located outside Assam get coal having ash content of 25 – 30%, whereas the cookeries located in Assam are getting low ash coal of NEC having ash content of only 7%. The other cookeries located outside Assam take supply of low ash coal from NEC, under LSS for blending the same with higher ash content coal which they have been getting from other coal companies. All other cookeries including three cookeries of Assam, who are buying the same low ash coal as supplied to Mahabir Coke, have been paying the LSS price as notified from time to time. 12. Learned counsel for the appellants has brought to our notice the following observations of the Division Bench in different parts of the judgment:- At the time the Linkage Committee stipulated that the price payable by the appellant company would be as per the prevailing rate to be decided by the fifth Respondent, no coal company had any authority to supersede the price fixed by the Central Government by a notification issued under the Colliery Control Order, 1945. At the highest, such conditional treatment of the appellant company as a linked unit, could come into play only if the price of coal was deregulated by the Central Government; ipso facto by reason of the Linkage Committee decision of November 16, 1995 the appellant company could not be charged at a rate in derogation of what the Central Government notified. xx xx xx xx xx xx The price of Assam coal at Rs. 741/- per MT (subject to the variation on account of ash content) became inoperative upon the notification of March 12, 1997. xx xx xx xx xx xx The appellants remain liable to pay the difference in price on the basis of price fixed by the respondents subsequent to the notification of March 12, 1997. 13. In our opinion, the exemption granted by the Central Government by the notification dated 9 th January, 1996 to Coal India and their subsidiaries from the provisions of Clauses 4, 4A and 4B of the 1945 Control Order in respect of sale of coal under LSS, the fetter imposed by the aforesaid notification of June 1994 got effectively removed. Specific stand taken by the respondents is that the linking of the first appellant was only in respect of the quantum of coal to be obtained by them and they were not entitled to price benefits of linked consumers. For the appellants, it was only a case of allocation. Thus, the point of time from when the appellants became liable to pay LSS rate would be the time when LSS price was raised after 9 th January 1996. Prior to that date, we have already reproduced the coal companies submission that the linked price and non-linked price had remained the same. So far as the aforesaid observations in the impugned judgment is concerned, such reasoning does not appear to us to be correct. But our views on this point would not advance the case of the appellants. That is so because in our opinion, it was within the power of the NEC to enhance the price for LSS consumers upon CIL and their subsidiaries being exempted from Clause 4 of the 1945 Control Order on and from 9 th January 1996. 14. It appears that a liberalised pricing system has been prevailing since the year 1993. We find no reason to disbelieve the coal companies when they assert that there was only allocation of coal in favour of the first appellant. Thus the appellants did not have vested legal right to preferential pricing as linked consumers. The 9 th January 1996 notification empowered Coal India Ltd. and their subsidiaries to charge price to consumers beyond that notified on 16 th June 1994 in respect of Assam coal. The appellants were in the non- core sector. Around that point of time only parity between LSS price and linked price was broken and the first appellant was required to pay the LSS price. So far as allocation is concerned, the agenda 24 of the 85 th meeting of the linkage committee retained the supply volume. But that Resolution is in tune with the NECs stand taken before us that LSS price ought to be charged to the appellants. The factual argument of the appellants that the two other cokery units in Assam were not linked, are of no relevance. The appellants have not been able to sustain a case before us that their linking agreement covered both allocation and pricing as is the case of other linked consumers. So far as the other cokery units are concerned, it has been clarified by the learned counsel for the coal companies that they lift coal of high ash content between 25-30% which would automatically take them out of the price advantage specified in Table II of the 1994 notification. We accordingly do not find any reason to set aside the judgment of the Division Bench.
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We also confirm this view of the Appellate Bench as we find such view to be the correct view so far as applicability of the ratio of the case of Ashoka Smokeless Coal India (supra) is concernedFrom the said Resolution, however, we find a specific agenda item concerning the first appellant, and the Resolution as adopted specifically stipulates that the price to be charged from the appellants was to be decided by the NEC Assam as prevalent at any point of time. In view of this specific treatment of pricing along with reference to the first appellant as a linked unit, in our opinion, said Resolution has to be construed to mean that treatment of the appellant as a linked unit was for the purpose of regular supply of coal and the pricing factor was separated from such deemed linking. This would be apparent from the decision taken against agenda item no.23, in which reference has been made to SSF units and cokery units which had been allocated (emphasis supplied) coal, and it was these units which were to be treated as linked units. The distinction between allocation and linking clearly emerges from the said decision of the linking committee. It is a fact that the first appellants treatment as a linked unit was a fiction. But such fiction was replaced by reality on the basis of a specific provision in the Resolution (agenda item no.24) so far as pricing is concerned. As the Resolution dealt with linking and pricing separately, the fictional linking could not be extended to actual pricing13. In our opinion, the exemption granted by the Central Government by the notification dated 9 th January, 1996 to Coal India and their subsidiaries from the provisions of Clauses 4, 4A and 4B of the 1945 Control Order in respect of sale of coal under LSS, the fetter imposed by the aforesaid notification of June 1994 got effectively removed. Specific stand taken by the respondents is that the linking of the first appellant was only in respect of the quantum of coal to be obtained by them and they were not entitled to price benefits of linked consumers. For the appellants, it was only a case of allocation. Thus, the point of time from when the appellants became liable to pay LSS rate would be the time when LSS price was raised after 9 th January 1996. Prior to that date, we have already reproduced the coal companies submission that the linked price and non-linked price had remained the same. So far as the aforesaid observations in the impugned judgment is concerned, such reasoning does not appear to us to be correct. But our views on this point would not advance the case of the appellants. That is so because in our opinion, it was within the power of the NEC to enhance the price for LSS consumers upon CIL and their subsidiaries being exempted from Clause 4 of the 1945 Control Order on and from 9 th January 199614. It appears that a liberalised pricing system has been prevailing since the year 1993. We find no reason to disbelieve the coal companies when they assert that there was only allocation of coal in favour of the first appellant. Thus the appellants did not have vested legal right to preferential pricing as linked consumers. The 9 th January 1996 notification empowered Coal India Ltd. and their subsidiaries to charge price to consumers beyond that notified on 16 th June 1994 in respect of Assam coal. The appellants were in the non- core sector. Around that point of time only parity between LSS price and linked price was broken and the first appellant was required to pay the LSS price. So far as allocation is concerned, the agenda 24 of the 85 th meeting of the linkage committee retained the supply volume. But that Resolution is in tune with the NECs stand taken before us that LSS price ought to be charged to the appellants. The factual argument of the appellants that the two other cokery units in Assam were not linked, are of no relevance. The appellants have not been able to sustain a case before us that their linking agreement covered both allocation and pricing as is the case of other linked consumers. So far as the other cokery units are concerned, it has been clarified by the learned counsel for the coal companies that they lift coal of high ash content between 25-30% which would automatically take them out of the price advantage specified in Table II of the 1994 notification. We accordingly do not find any reason to set aside the judgment of the Division Bench.
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THE GREAT EASTERN SHIPPING CO. LTD Vs. STATE OF KARNATAKA | above- mentioned provision of the said Act are satisfied. 61. A reference has also been made to the decision in the State of Orissa & Anr. v. Asiatic Gases Ltd., (2007) 5 SCC 766 in which what is the nature of, transfer of right to use the goods, has been discussed and Aggarwal Brothers (supra) has been relied upon, thus: 8. Lastly, it is important to bear in mind that Section 2(g)(iv) was placed on the statute in terms of Article 366(29-A)(d) of the Constitution. In Aggarwal Bros. v. State of Haryana, (1999) 9 SCC 182 a Division Bench of this Court has held that the provision under Section 2(l)(iv) of the Haryana General Sales Tax Act, 1973 [which was similar to Section 2(g)(iv) of this Act] expressly spoke of transfer of the right to use goods and not transfer of goods. In that matter, it was argued on behalf of the assessee that in the case of a deemed sale within the meaning of Section 2(l)(iv), there must be a legal transfer of goods. This argument was rejected by this Court, stating that the levy of tax was not on transfer of the goods itself, but the levy was on the transfer of the right to use such goods for consideration. In our view, the judgment of this Court in Aggarwal case would squarely apply to the present case. In the present case, as stated above, the cylinders filled with medical oxygen/industrial gas were loaned to the customers. The loan was free from the payment of charges for 14 days. The over retention charges were levied after 14 days. In the circumstances, the levy was on the transfer of the right to use the goods for consideration. 62. It was submitted on behalf of appellant that the amendment to Finance Act had been made and a clarification dated 10.5.2008 has been issued that service tax is to be levied on the Charter Party Agreement. Hence it was urged that it cannot be treated as that of deemed sale. The said clarification as to service tax does not advance any cause as the levy of service tax is permissible or not is not the question to be examined by this Court. The question germane to the instant matter is not whether service tax can be levied. The question involved in the case is only to the extent whether the State of Karnataka can realize the sales tax on deemed sale under section 5C of the KST Act in view of the provisions contained in Article 366(29A) (d) of the Constitution. Thus, we refrain from going into the effect of the aforesaid notification/clarification as to service tax. That is not the question involved in the matter. In Re: Rights and liabilities in territorial waters 63. With respect to territorial waters, to what extent the coastal State can exercise power has been considered by the High Court, and specific findings have been recorded. The High Court has gone into the question of whether the territorial waters abutting the landmass form part of the State of Karnataka. It was not disputed that the extent of territorial waters is up to 12 nautical miles from the landmass that is the baseline. Article 297 has been considered by the High Court and the Lists in the 7 th Schedule of the Constitution. Entries 25 to 27 and 30 of List I, Entry 32 of List III, i.e., Concurrent List have been referred. 64. Learned senior counsel appearing for the parties have also referred to various decisions and the debates in the Constituent Assembly and answers given by Dr. B.R. Ambedkar as to scope of Article 293 of the Constitution. The High Court has also relied upon the definition of State as provided in section 2(j) of the Marine & Fishing Act, 1986, Entries 13 and 21 of State List II of the 7 th Schedule and in respect of fisheries Entry 21 of List II. 65. We need not go into the aforesaid questions. However, as the High Court has given a finding, and on being impleaded, coastal States have filed their response as notices were issued to them. We need not go into the question in respect of the right of the States and the Central Government as to territorial waters at all because of our finding concerning exaction of tax under the KST Act owing to situs where the transfer right to use the vessel, which is a deemed sale, had taken place. As such, we leave the question open and dilute the finding recorded by the High Court in this regard. 66. Charter party has been entered into admittedly in Mangalore, and the ship is used at the New Mangalore Port by the New Mangalore Port Trust. Though vessel was used in the territorial waters, makes no difference with respect to exigibility of sales¬tax under the provisions of the KST Act in view of the decision of this Court in 20 th Century (supra), which has been affirmed in BSNL (supra) and has been followed in various other decisions of this Court. 67. Lastly, it was submitted that the High Court ought to have remitted the matter to the concerned assessing authorities to decide the aspect that whether there was deemed sale in view of transfer of right to use vessel. The submission is, untenable as the appellant company filed the writ petition, and a writ appeal too was filed by it. They have submitted on merits not only before the High Court but this Court as well, after having failed to convince on merits they have raised aforesaid submission that too at the fag end as an alternative. They have questioned the notice and invited a decision. Once it has gone against them; they cannot submit that this question should be left to be considered to be taken in another round of litigation for adjudication by the concerned tax authorities making an assessment. The submission is wholly untenable and stands repelled. | 0[ds]In Re: Section 5C of KST Act:It has to be considered in view of the charter agreement entered into between the company and the Port Trust. The tender documents pursuant to which agreement has been entered into contains the conditions and instructions to tenderers. The pre¬ qualification criteria provide that the tenderer has to submit the documents regarding ownership or possession of tug on bareboat/committed demise charter hire of tugs. In case he does not own the tug, he has to provide documents to prove that he has entered into a lease for charter hire of tug(s) for deploying them in the Port Trust during the period of the contract. The tenderer should have experience of manning and harbor practice for one year during the last 3 years. Tugs should be deployed at harbors at New Mangalore Port during the contract period33. When we peruse the various terms and conditions of the Charter Party Agreement (Annexure I), clause 1 provides that the contractors let and the charterer hire the goods vessel for six months. The expression let has been used, and the vessel most significantly during the charter period has been placed at the disposal of the charterers and under their control in every respect. The charterers have been given the right to use all outfits, equipment, and appliances on board the vessel at the time of the delivery, including the whole reach, burthen, and deck capacity. Thus, in our considered opinion, merely by providing the staff, insurance, indemnity, and other responsibilities of bearing officials costs. Effective control for the entire period of six months has been given to the charterers. It is a case of transfer of right to use the vessel for which certain expenses and staff are to be provided by the contractor, which is not sufficient to make out that the control and possession of the vehicle are with the contractor. The possession and control are clearly with the charterer. As in essence, it has to be seen from a conjoint reading of various conditions whether there is a transfer of right to use the vessel. In our considered opinion there is not even an iota of doubt that under the charter agreement coupled with the instructions to tenderers, general conditions and special conditions for the contract as specified in the tender documents and charter-party clauses, there is a transfer of right to use the vessel for the purposes specified in the agreement34. To constitute a transaction for the transfer of right to use of goods, essential is, goods must be available for delivery. In the instant case, the vessel was available for delivery and in fact, had been delivered. There is no dispute as to the vessel and the charterer has a legal right to use the goods, and the permission/licence has been made available to the charterer to the exclusion of the contractor. Thus, there is complete transfer of the right to use. It cannot be said that the agreement and the conditions subject to which it has been made, is not a transfer of right to use the goods, during the period of six months, the contractor has no right to give the vessel for use to anyone else. Thus in view of the provisions inserted in Article 366(29A) (d), section 5C, and definition of sale in section 2 of the KST Act, there is no room for doubt that there is a transfer of right to use the vessel37. The Charter Party Agreement qualifies the test laid down by this Court. Applying the substance of the contract and the nominal nature test, the vessel was available when the agreement for the right to use the goods has taken place. The vessel was available at the time of transfer, deliverable, and delivered and was at the exclusive disposal for six months round the clock with the charterer port trust. The use of license and permission was at the disposal of the charterer and to the exclusion of the contractor/transferor. It was not open to the contractor to permit the use of the vessel by any other person for any other purposeThere is no dispute with the proposition that the terms and conditions have to be seen as intended by parties, and it has to be based on the objectives, values, and policies that contract is designed to actualizeBased on stipulations, we have come to the conclusion that it is a case of transfer of right to use, which is a deemed sale. The decision buttresses our conclusion that the charter¬party has to be decided based on the stipulations43. We are not turning our decision upon the terms used like let, hire, delivery and re-delivery but on the other essential terms of the Charter Party Agreement entered in the instant case which clearly makes out that there is a transfer of exclusive right to use the vessel which is a deemed sale and is liable to tax under the KST Act. In the instant case, full control of the vessel had been given to the charterer to use exclusively for six months, and delivery had also been made. The use by charterer exclusively for six months makes it out that it is definitely a contract of transfer of right to use the vessel with which we are concerned in the instant matter, and that is a deemed sale as specified in ArticleOn the basis of the abovementioned decision, it was urged that all Charter Party Agreements are service. The submission cannot be accepted, as there is no general/invariable rule/law in this regard. It depends upon the terms and conditions of the charter-party when it is to be treated as only for service and when it is the transfer of right to usePreceding discussion renders no help as it was not relating to the charter by demise. In the instant case control, excusive use is given to the charterer for six monthsAgain, the decision is based on the terms and conditions. Merely by employing the crew to render the service by the owner, is not decisive of the nature of charterMerely rendering service by the servants and crew to carry the goods will not make it a service contract. It depends upon the nature of each contract, and the terms and conditions agreed toThe decision lends no support in view of the terms and conditions of the charter-party in question and the general discussion. Otherwise, also, it does not espouse cause concerning whether there is a right to transfer the use of the vessel51. It is apparent from the discussion mentioned above that the services of the master and crew may or may not be superadded in the case of demise. Whether or not charter amount to demise would depend upon the particular terms of the charterIn a charter-party by demise, it may be charter without master or crew or bareboat charter, and another may be a charter with master and crew under which ship passes to the charterer for the purposes of mercantile adventure. As held in this case, full control has been given, and use is exclusively for the charterer. He has the right to use the space and burden. The discussion in Halsburys also makes it clear that each and every charter¬party need not be a service contract to provide services only53. The argument based upon the foreign courts decisions as to the charter agreements are only for service purpose, is not correct. As already discussed, even in the abovementioned foreign courts decisions, it depends upon the charter¬party, and there is no super¬ check formula to find out the nature of the contract. It depends upon the terms and conditions of each contract. Merely use of specific words, as mentioned above, is not determinative, but the real crux is to be seen as per relevant conditions as agreed to between the parties54. When we consider the charter¬party in question in the context of applicable law, particularly in view of the constitutional provisions of Article 366(29A)(d), we find that there is transfer of right to use tangible goods, which is determinative of deemed sale as per the Constitution of India and provisions of section 5C reflecting the said intendment. We are of the considered opinion that there is transfer of right to use exclusively given to charterer for six months, and the vessel has been kept under the exclusive control. The charterer qualifies the test laid down by this court in BSNL (supra)In our opinion, the submission cannot be accepted. Merely by the provisions mentioned above as to license, its production/change of ownership etc., it cannot be said that the owner has not transferred the right to use the vessel. The ownership in such a deemed sale is retained by owner. He does not cease to be an owner by transferring right to use the property. Merely by the fact that a license to be obtained with certain stipulations and to be produced by Tindal on being demanded and change incapacity to be reported to the Deputy Conservator, the provisions are not of any help for interpreting the Charter Party Agreement, and to decide the question whether there is a transfer of right to use the vesselIn Re: Situs of the agreement57. For the realization of tax imposed within the ken of power under Article 366(29A)(d), it is not material where the goods are passed, but the situs of the agreement is determinative for the realization of taxIn the present case, the agreement has been admittedly signed in Mangalore, and the vessel is used in the territorial waters, which is as per the submission of the company, fully in territory of the Union of India. It makes no difference as the situs of the deemed sale is in Mangalore. Thus, the liability to pay tax under the Act cannot be countenanced59. This Court also dealt with proposition whether the State can create a deemed fiction that in case the goods are for use within the State irrespective of the place where the contract of transfer of right to use the goods is made. That is not the question involved in the present matter. The situs of the agreement is relevant, which is admittedly within the territory of Karnataka. The situs of the deemed sale is in Mangalore, and the decision of a Constitution Bench of this Court in the 20 th Century (supra) is binding on us and effectively repels the submission to the contraryThe said clarification as to service tax does not advance any cause as the levy of service tax is permissible or not is not the question to be examined by this Court. The question germane to the instant matter is not whether service tax can be levied. The question involved in the case is only to the extent whether the State of Karnataka can realize the sales tax on deemed sale under section 5C of the KST Act in view of the provisions contained in Article 366(29A) (d) of the Constitution. Thus, we refrain from going into the effect of the aforesaid notification/clarification as to service tax. That is not the question involved in the matterIn Re: Rights and liabilities in territorial waters63. With respect to territorial waters, to what extent the coastal State can exercise power has been considered by the High Court, and specific findings have been recorded. The High Court has gone into the question of whether the territorial waters abutting the landmass form part of the State of Karnataka. It was not disputed that the extent of territorial waters is up to 12 nautical miles from the landmass that is the baseline. Article 297 has been considered by the High Court and the Lists in the 7 th Schedule of the Constitution. Entries 25 to 27 and 30 of List I, Entry 32 of List III, i.e., Concurrent List have been referred64. Learned senior counsel appearing for the parties have also referred to various decisions and the debates in the Constituent Assembly and answers given by Dr. B.R. Ambedkar as to scope of Article 293 of the Constitution. The High Court has also relied upon the definition of State as provided in section 2(j) of the Marine & Fishing Act, 1986, Entries 13 and 21 of State List II of the 7 th Schedule and in respect of fisheries Entry 21 of List II65. We need not go into the aforesaid questions. However, as the High Court has given a finding, and on being impleaded, coastal States have filed their response as notices were issued to them. We need not go into the question in respect of the right of the States and the Central Government as to territorial waters at all because of our finding concerning exaction of tax under the KST Act owing to situs where the transfer right to use the vessel, which is a deemed sale, had taken place. As such, we leave the question open and dilute the finding recorded by the High Court in this regard66. Charter party has been entered into admittedly in Mangalore, and the ship is used at the New Mangalore Port by the New Mangalore Port Trust. Though vessel was used in the territorial waters, makes no difference with respect to exigibility of sales¬tax under the provisions of the KST Act in view of the decision of this Court in 20 th Century (supra), which has been affirmed in BSNL (supra) and has been followed in various other decisions of this CourtOnce it has gone against them; they cannot submit that this question should be left to be considered to be taken in another round of litigation for adjudication by the concerned tax authorities making an assessment. The submission is wholly untenable and stands repelled. | 0 | 23,484 | 2,519 | ### Instruction:
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above- mentioned provision of the said Act are satisfied. 61. A reference has also been made to the decision in the State of Orissa & Anr. v. Asiatic Gases Ltd., (2007) 5 SCC 766 in which what is the nature of, transfer of right to use the goods, has been discussed and Aggarwal Brothers (supra) has been relied upon, thus: 8. Lastly, it is important to bear in mind that Section 2(g)(iv) was placed on the statute in terms of Article 366(29-A)(d) of the Constitution. In Aggarwal Bros. v. State of Haryana, (1999) 9 SCC 182 a Division Bench of this Court has held that the provision under Section 2(l)(iv) of the Haryana General Sales Tax Act, 1973 [which was similar to Section 2(g)(iv) of this Act] expressly spoke of transfer of the right to use goods and not transfer of goods. In that matter, it was argued on behalf of the assessee that in the case of a deemed sale within the meaning of Section 2(l)(iv), there must be a legal transfer of goods. This argument was rejected by this Court, stating that the levy of tax was not on transfer of the goods itself, but the levy was on the transfer of the right to use such goods for consideration. In our view, the judgment of this Court in Aggarwal case would squarely apply to the present case. In the present case, as stated above, the cylinders filled with medical oxygen/industrial gas were loaned to the customers. The loan was free from the payment of charges for 14 days. The over retention charges were levied after 14 days. In the circumstances, the levy was on the transfer of the right to use the goods for consideration. 62. It was submitted on behalf of appellant that the amendment to Finance Act had been made and a clarification dated 10.5.2008 has been issued that service tax is to be levied on the Charter Party Agreement. Hence it was urged that it cannot be treated as that of deemed sale. The said clarification as to service tax does not advance any cause as the levy of service tax is permissible or not is not the question to be examined by this Court. The question germane to the instant matter is not whether service tax can be levied. The question involved in the case is only to the extent whether the State of Karnataka can realize the sales tax on deemed sale under section 5C of the KST Act in view of the provisions contained in Article 366(29A) (d) of the Constitution. Thus, we refrain from going into the effect of the aforesaid notification/clarification as to service tax. That is not the question involved in the matter. In Re: Rights and liabilities in territorial waters 63. With respect to territorial waters, to what extent the coastal State can exercise power has been considered by the High Court, and specific findings have been recorded. The High Court has gone into the question of whether the territorial waters abutting the landmass form part of the State of Karnataka. It was not disputed that the extent of territorial waters is up to 12 nautical miles from the landmass that is the baseline. Article 297 has been considered by the High Court and the Lists in the 7 th Schedule of the Constitution. Entries 25 to 27 and 30 of List I, Entry 32 of List III, i.e., Concurrent List have been referred. 64. Learned senior counsel appearing for the parties have also referred to various decisions and the debates in the Constituent Assembly and answers given by Dr. B.R. Ambedkar as to scope of Article 293 of the Constitution. The High Court has also relied upon the definition of State as provided in section 2(j) of the Marine & Fishing Act, 1986, Entries 13 and 21 of State List II of the 7 th Schedule and in respect of fisheries Entry 21 of List II. 65. We need not go into the aforesaid questions. However, as the High Court has given a finding, and on being impleaded, coastal States have filed their response as notices were issued to them. We need not go into the question in respect of the right of the States and the Central Government as to territorial waters at all because of our finding concerning exaction of tax under the KST Act owing to situs where the transfer right to use the vessel, which is a deemed sale, had taken place. As such, we leave the question open and dilute the finding recorded by the High Court in this regard. 66. Charter party has been entered into admittedly in Mangalore, and the ship is used at the New Mangalore Port by the New Mangalore Port Trust. Though vessel was used in the territorial waters, makes no difference with respect to exigibility of sales¬tax under the provisions of the KST Act in view of the decision of this Court in 20 th Century (supra), which has been affirmed in BSNL (supra) and has been followed in various other decisions of this Court. 67. Lastly, it was submitted that the High Court ought to have remitted the matter to the concerned assessing authorities to decide the aspect that whether there was deemed sale in view of transfer of right to use vessel. The submission is, untenable as the appellant company filed the writ petition, and a writ appeal too was filed by it. They have submitted on merits not only before the High Court but this Court as well, after having failed to convince on merits they have raised aforesaid submission that too at the fag end as an alternative. They have questioned the notice and invited a decision. Once it has gone against them; they cannot submit that this question should be left to be considered to be taken in another round of litigation for adjudication by the concerned tax authorities making an assessment. The submission is wholly untenable and stands repelled.
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not determinative, but the real crux is to be seen as per relevant conditions as agreed to between the parties54. When we consider the charter¬party in question in the context of applicable law, particularly in view of the constitutional provisions of Article 366(29A)(d), we find that there is transfer of right to use tangible goods, which is determinative of deemed sale as per the Constitution of India and provisions of section 5C reflecting the said intendment. We are of the considered opinion that there is transfer of right to use exclusively given to charterer for six months, and the vessel has been kept under the exclusive control. The charterer qualifies the test laid down by this court in BSNL (supra)In our opinion, the submission cannot be accepted. Merely by the provisions mentioned above as to license, its production/change of ownership etc., it cannot be said that the owner has not transferred the right to use the vessel. The ownership in such a deemed sale is retained by owner. He does not cease to be an owner by transferring right to use the property. Merely by the fact that a license to be obtained with certain stipulations and to be produced by Tindal on being demanded and change incapacity to be reported to the Deputy Conservator, the provisions are not of any help for interpreting the Charter Party Agreement, and to decide the question whether there is a transfer of right to use the vesselIn Re: Situs of the agreement57. For the realization of tax imposed within the ken of power under Article 366(29A)(d), it is not material where the goods are passed, but the situs of the agreement is determinative for the realization of taxIn the present case, the agreement has been admittedly signed in Mangalore, and the vessel is used in the territorial waters, which is as per the submission of the company, fully in territory of the Union of India. It makes no difference as the situs of the deemed sale is in Mangalore. Thus, the liability to pay tax under the Act cannot be countenanced59. This Court also dealt with proposition whether the State can create a deemed fiction that in case the goods are for use within the State irrespective of the place where the contract of transfer of right to use the goods is made. That is not the question involved in the present matter. The situs of the agreement is relevant, which is admittedly within the territory of Karnataka. The situs of the deemed sale is in Mangalore, and the decision of a Constitution Bench of this Court in the 20 th Century (supra) is binding on us and effectively repels the submission to the contraryThe said clarification as to service tax does not advance any cause as the levy of service tax is permissible or not is not the question to be examined by this Court. The question germane to the instant matter is not whether service tax can be levied. The question involved in the case is only to the extent whether the State of Karnataka can realize the sales tax on deemed sale under section 5C of the KST Act in view of the provisions contained in Article 366(29A) (d) of the Constitution. Thus, we refrain from going into the effect of the aforesaid notification/clarification as to service tax. That is not the question involved in the matterIn Re: Rights and liabilities in territorial waters63. With respect to territorial waters, to what extent the coastal State can exercise power has been considered by the High Court, and specific findings have been recorded. The High Court has gone into the question of whether the territorial waters abutting the landmass form part of the State of Karnataka. It was not disputed that the extent of territorial waters is up to 12 nautical miles from the landmass that is the baseline. Article 297 has been considered by the High Court and the Lists in the 7 th Schedule of the Constitution. Entries 25 to 27 and 30 of List I, Entry 32 of List III, i.e., Concurrent List have been referred64. Learned senior counsel appearing for the parties have also referred to various decisions and the debates in the Constituent Assembly and answers given by Dr. B.R. Ambedkar as to scope of Article 293 of the Constitution. The High Court has also relied upon the definition of State as provided in section 2(j) of the Marine & Fishing Act, 1986, Entries 13 and 21 of State List II of the 7 th Schedule and in respect of fisheries Entry 21 of List II65. We need not go into the aforesaid questions. However, as the High Court has given a finding, and on being impleaded, coastal States have filed their response as notices were issued to them. We need not go into the question in respect of the right of the States and the Central Government as to territorial waters at all because of our finding concerning exaction of tax under the KST Act owing to situs where the transfer right to use the vessel, which is a deemed sale, had taken place. As such, we leave the question open and dilute the finding recorded by the High Court in this regard66. Charter party has been entered into admittedly in Mangalore, and the ship is used at the New Mangalore Port by the New Mangalore Port Trust. Though vessel was used in the territorial waters, makes no difference with respect to exigibility of sales¬tax under the provisions of the KST Act in view of the decision of this Court in 20 th Century (supra), which has been affirmed in BSNL (supra) and has been followed in various other decisions of this CourtOnce it has gone against them; they cannot submit that this question should be left to be considered to be taken in another round of litigation for adjudication by the concerned tax authorities making an assessment. The submission is wholly untenable and stands repelled.
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State Of Uttar Pradesh Vs. Raja Anand Brahma Shah | the Thomason Despatches). He relies on this statement contained in the judgment of the High Court in Writ Petition No. 454/1955, dated November 2, 1962. But this statement refers to the sanad, dated October 15, 1781, and not to the sanad, dated October 9, 1781, or the later sanad, dated November 4, 1803. It appears from the District Gazetteer (p. 255) that as soon as Adil Shah obtained possession of the zamindari, Adil Shah really forfeited his claim to the assigned villages the revenue of which was Rs. 8,001 and as possession had been obtained at the time of the general settlement in 1788 the Governor-General in Council ordered the assignment to be resumed. Adil Shah died in 1794 and the New Raja became involved in monetary difficulties. Mr. Barton, the then Collector, made certain proposals and they were accepted at Calcutta and orders were issued to him to revise the assessment of Agori Bahar in such a way as to give the Raja a net profit of Rs. 8,001 per annum or to allot him in lieu thereof a certain number of villages assessed to that amount. Accordingly, the revision of certain revenue paying villages took place, and in addition to the villages assigned by Mr. Duncan, certain others assessed to a sum of Rs. 4,000 were made over to the Raja. This arrangement brought taluqas Agori and Singrauli into the Rajas possession with the result that he became in 1804 both zamindar and jagirdar or assignee of the Government demand, in taluqas Kon and Agori, Singrauli and 28 villages in Barhar. Paras. 11 to 15 of Roberts report dated January 1, 1847, are to the same effect. 23. It seems to us clear from the above facts that Pargana Agori is still held under the sanad, dated October 9, 1781, and the sanad, dated November 4, 1803. The second sanad is a grant of land revenue. That is definitely a jagir. 24 The learned counsel for the State contends that the fact that Adil Shah asserted a prior title may have been one of the reasons for the restoration of the zamindari but it was in essence a new grant made on political considerations. He further points out that conditions are also laid down in the sanad. Adil Shah was enjoined to make arrangements regarding cultivation and population of the pargana and had to obey the directions of the revenue officer and Raja Mohit Narain Bahadur in this behalf. 25. As stated by this Court in Amar Singhji v. State of Rajasthan. 1955-2 SCR 303 : (AIR 1955 SC 504 ),"we do not find any sufficient ground for putting a restricted meaning on the word Jagir in Art. 31-A. At the time of the enactment of that Article the word had nearly acquired both in popular usage and legislative practice a wide cannotation, and it will be in accord with sound canons of interpretation to ascribe that connotation to that word rather than an archaic meaning to be gathered from a study of ancient tenures." 26. An inam is explained in Wilsons Glossary thus :"A gift, a benefaction in general, a gift by a superior to an inferior. In India, and especially in the south, and amongst the Marathas, the term was especially applied to grants of land held rent-free, and in hereditary and perpetual occupation, the tenure came in time to he qualified by the reservation of a portion of the assessable revenue, or by the exaction of all proceeds exceeding the intended value of the original assignment; the tem was also vaguely applied to grant of rent-free land, without reference to perpetuity or any specified conditions. The grants are also distinguishable by their origin from the ruling authorities, or from the village communities and are again distinguishable by peculiar reservations, or by their being applicable to different objects.." 27. In our opinion a grant by the British of lands for services rendered to them would be a grant falling within Cl. (a) (i). 28. It seems to us that on the facts of the case the grant was in the nature of a grant similar to a Jagir or inam. The fact that Balwant Singh and Chet Singh held possession of this Pargana for 40 years cannot be ignored. This shows that to all intents and purposes Adil Shab had lost the pargana and it was in effect a fresh grant in the nature of Jagir or inam for services rendered to the British. Adil Shahs assertion to title had not been verified. Although it may be one of the reasons for the grant, it is clear that if it had not been for the grant and its enforcement by the British troops Adil. Shah would not have been able to recover the possession of the Pargana. His title to the pargana would rest on the grant and not the alleged previous title. 29. If it is held, as we do hold, that the area in dispute is a grant in the nature of Jagir or inam and consequently an estate within Art. 31-A (2) the impugned Act can claim the protection of Art. 31A. The notifications, dated June 30, 1953, and July 1953 must therefore be upheld. 30. Mr. A. K. Sen further urges that the acquisition of the estate was not for the purposes of agrarian reforms because hundreds of square miles of forest are sought to be acquired. But as we have held that the area in dispute is a grant in the nature of Jagir or inam, its acquisition like the acquisition of all Jagirs, inams, or similar grants, was a necessary step in the implementation of the agrarian reforms and was clearly contemplated in Art. 31A. 31. In this view it is not necessary to decide whether the area in dispute is a Mahal or covered by S. 3 (8) of the Reforms Act as it existed in 1958 or earlier or any other question which was raised before us. 32. | 1[ds]14. In our opinion the word including is intended to clarify or explain the concept of land held or let for purposes ancillary to agriculture. The idea seems to be to remove any doubts on the point whether waste land or forest land could be held to be capable of being held or let for purposes ancillary to agriculture15.We must, therefore hold that forest land or waste land in the area in dispute cannot be deemed to be an estate within estate within Cl.(a)(iii) unless it was held or let for purposes ancillary to agriculture. There is no dispute that the cultivated portion of Pargana Agori would fall within Cl. (a) (iii)In this view it is not necessary to decide whether the area in dispute is a Mahal or covered by S. 3 (8) of the Reforms Act as it existed in 1958 or earlier or any other question which was raised before us. | 1 | 4,716 | 179 | ### 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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the Thomason Despatches). He relies on this statement contained in the judgment of the High Court in Writ Petition No. 454/1955, dated November 2, 1962. But this statement refers to the sanad, dated October 15, 1781, and not to the sanad, dated October 9, 1781, or the later sanad, dated November 4, 1803. It appears from the District Gazetteer (p. 255) that as soon as Adil Shah obtained possession of the zamindari, Adil Shah really forfeited his claim to the assigned villages the revenue of which was Rs. 8,001 and as possession had been obtained at the time of the general settlement in 1788 the Governor-General in Council ordered the assignment to be resumed. Adil Shah died in 1794 and the New Raja became involved in monetary difficulties. Mr. Barton, the then Collector, made certain proposals and they were accepted at Calcutta and orders were issued to him to revise the assessment of Agori Bahar in such a way as to give the Raja a net profit of Rs. 8,001 per annum or to allot him in lieu thereof a certain number of villages assessed to that amount. Accordingly, the revision of certain revenue paying villages took place, and in addition to the villages assigned by Mr. Duncan, certain others assessed to a sum of Rs. 4,000 were made over to the Raja. This arrangement brought taluqas Agori and Singrauli into the Rajas possession with the result that he became in 1804 both zamindar and jagirdar or assignee of the Government demand, in taluqas Kon and Agori, Singrauli and 28 villages in Barhar. Paras. 11 to 15 of Roberts report dated January 1, 1847, are to the same effect. 23. It seems to us clear from the above facts that Pargana Agori is still held under the sanad, dated October 9, 1781, and the sanad, dated November 4, 1803. The second sanad is a grant of land revenue. That is definitely a jagir. 24 The learned counsel for the State contends that the fact that Adil Shah asserted a prior title may have been one of the reasons for the restoration of the zamindari but it was in essence a new grant made on political considerations. He further points out that conditions are also laid down in the sanad. Adil Shah was enjoined to make arrangements regarding cultivation and population of the pargana and had to obey the directions of the revenue officer and Raja Mohit Narain Bahadur in this behalf. 25. As stated by this Court in Amar Singhji v. State of Rajasthan. 1955-2 SCR 303 : (AIR 1955 SC 504 ),"we do not find any sufficient ground for putting a restricted meaning on the word Jagir in Art. 31-A. At the time of the enactment of that Article the word had nearly acquired both in popular usage and legislative practice a wide cannotation, and it will be in accord with sound canons of interpretation to ascribe that connotation to that word rather than an archaic meaning to be gathered from a study of ancient tenures." 26. An inam is explained in Wilsons Glossary thus :"A gift, a benefaction in general, a gift by a superior to an inferior. In India, and especially in the south, and amongst the Marathas, the term was especially applied to grants of land held rent-free, and in hereditary and perpetual occupation, the tenure came in time to he qualified by the reservation of a portion of the assessable revenue, or by the exaction of all proceeds exceeding the intended value of the original assignment; the tem was also vaguely applied to grant of rent-free land, without reference to perpetuity or any specified conditions. The grants are also distinguishable by their origin from the ruling authorities, or from the village communities and are again distinguishable by peculiar reservations, or by their being applicable to different objects.." 27. In our opinion a grant by the British of lands for services rendered to them would be a grant falling within Cl. (a) (i). 28. It seems to us that on the facts of the case the grant was in the nature of a grant similar to a Jagir or inam. The fact that Balwant Singh and Chet Singh held possession of this Pargana for 40 years cannot be ignored. This shows that to all intents and purposes Adil Shab had lost the pargana and it was in effect a fresh grant in the nature of Jagir or inam for services rendered to the British. Adil Shahs assertion to title had not been verified. Although it may be one of the reasons for the grant, it is clear that if it had not been for the grant and its enforcement by the British troops Adil. Shah would not have been able to recover the possession of the Pargana. His title to the pargana would rest on the grant and not the alleged previous title. 29. If it is held, as we do hold, that the area in dispute is a grant in the nature of Jagir or inam and consequently an estate within Art. 31-A (2) the impugned Act can claim the protection of Art. 31A. The notifications, dated June 30, 1953, and July 1953 must therefore be upheld. 30. Mr. A. K. Sen further urges that the acquisition of the estate was not for the purposes of agrarian reforms because hundreds of square miles of forest are sought to be acquired. But as we have held that the area in dispute is a grant in the nature of Jagir or inam, its acquisition like the acquisition of all Jagirs, inams, or similar grants, was a necessary step in the implementation of the agrarian reforms and was clearly contemplated in Art. 31A. 31. In this view it is not necessary to decide whether the area in dispute is a Mahal or covered by S. 3 (8) of the Reforms Act as it existed in 1958 or earlier or any other question which was raised before us. 32.
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14. In our opinion the word including is intended to clarify or explain the concept of land held or let for purposes ancillary to agriculture. The idea seems to be to remove any doubts on the point whether waste land or forest land could be held to be capable of being held or let for purposes ancillary to agriculture15.We must, therefore hold that forest land or waste land in the area in dispute cannot be deemed to be an estate within estate within Cl.(a)(iii) unless it was held or let for purposes ancillary to agriculture. There is no dispute that the cultivated portion of Pargana Agori would fall within Cl. (a) (iii)In this view it is not necessary to decide whether the area in dispute is a Mahal or covered by S. 3 (8) of the Reforms Act as it existed in 1958 or earlier or any other question which was raised before us.
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Ganga Ram & Ors Vs. Union Of India & Ors | panel in any year will rank senior to those empanelled in subsequent years.20. Date of passing the departmental examination/test to regulate seniority:(a) Except as provided for in sub-paragraph (b) below, seniority of two or more railway servants, who pass the departmental examination/test on different dates, not treated as one continuous examination, will be regulated entirely by the date of passing the examination or test.(b) The seniority of Accounts Clerks, Grade I and Stock Verifiers is to be determined with reference to their substantive or basic seniority in Grade II irrespective of the dates they qualify for promotion as Clerks, Grade I, by passing the examination prescribed for the purpose.21. Seniority on Promotion to Non-selection posts. - Promotion to non-selection posts shall be on the basis of seniority-cum-suitability being judged by the authority competent to fill the post, by oral and/or written test or a departmental examination as considered necessary and the record of service. The only exception to this would be in cases where for administrative convenience, which should be recorded in writing, the competent authority considers it necessary to appoint a railway servant other than the senior-most suitable railway servant to officiate in a short term vacancy not exceeding two months as a rule and 4 months in any case. This will, however, not give the railway servant any advantage not otherwise due to him."Appendix 2, in addition to the syllabus for the examination, provides:"3. The examination will be conducted by the Head of each office, who will also decide the intervals at which it should be held.4. (a) Normally no railway servant will be permitted to take the examination more than three, but the Financial Adviser and Chief Accounts Officer may in deserving cases permit a candidate to take the examination for a fourth time, and in very exceptional cases, the General Manager may permit a candidate to take the examination for the fifth and the last time.(b) No railway servant, who has less than six months service in a Railway Accounts Office or who had not a reasonable chance of passing the examination will be allowed to appear in the examination prescribed in this Appendix.In exceptional circumstances, the condition regarding six months minimum service may be waived by the General Manager.(c) Temporary railway servants may be permitted to sit for the examination but it should be clearly understood that the passing of this examination will not give them a claim for absorption in the permanent cadre.(d). A candidate who fails in the examination but shows marked excellence by obtaining not less than 50 per cent in any subject may be exempted from further examination in that subject in subsequent examination."It is quite clear that para 49 does not confer any right to immediate promotion on those Grade II clerks who pass the qualifying Appendix 2 examination. The only benefit which accrues to them is that one hurdle is removed from their way and they become eligible for being considered for promotion to Grade I. This promotion is governed by the test of seniority-cum-suitability. All those who qualify for promotion are treated at par for this purpose and they are grouped together as constituting on class. The fact that one person has qualified earlier in point of time does not by itself clothe him with a preferential claim to promotion as against those who qualify later. This examination is considered to be a continuous examination and as is clear from para 17, success at this examination does not constitute the basis of seniority which continues to be dependent on the substantive or basic seniority in Grade II. The question which directly arises for determination is: does the procedure laid down in these interactions violate the petitioners right as guaranteed by Arts. 14 and 16. The State which encounters diverse problems arises from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different departments. In the present case the object which is sought to be achieved by the provisions reproduced earlier is the requisite efficiency in the Accounts Department of the Railway Establishment. The departmental authority is the proper judge of its requirements. The direct recruits and the promotees like the petitioners, in our opinion, clearly constitute different classes and this classification is sustainable on intelligible differentia which has a reasonable connection with the object of efficiency sought to be achieved. Promotion to Grade I is guided by the consideration of seniority-cum-merit. It is, therefore, difficult to find fault with the provision which places in one group all those Grade II who have officiated for some time are not given the credit of this period when a permanent vaancy arises also does not attract the prohibition contained in Arts. 14 and 16. It does not constitute any hostile discrimination and is neither arbitrary nor unreasonable. It applies uniformly to all members of Grade II clerks who have qualified and become eligible.The onus in this ceas is on the petitioners to establish discrimination by showing that the classification does not rest upon any just and reasonable basis. The difference emphasised on behalf of the petitioners is too tenuous to form the basis of a serious argument. Their challenge, therefore, fails.4. The decision in Mervyn Continho v. Collector of Customs, Bombay, 1966- 3SCR 600 = (AIR 1967 SC 52 ), on which reliance has been placed on behalf of the petitioners dealt with a different problem though the principle of law laid down there seems to go against the petitioners submission. It was expressly observed there that there is on inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct rexruits and promotees. The distinction between direct recruits and promotees as two sources of recruitment being a recognised difference, not obnoxious to the equality clauses, the provisions which concern us cannot be struck down on the ration of this decision. | 0[ds]The equality of opportunity in the matter of services undoubtedly takes within its fold all stages of service from initial appointment to its termination including promotion but it does not prohibit the prescription of reasonable rules for selection and promotion, applicable to all members of a classified group. Mere production of inequality is not enough to attract the constitutional inhibition because every classification is likely in some degree to produce some inequality. The State is legitimately empowered to frame rules of classification for securing the requisite standard of efficiency in services and the classification need not be scientifically perfect or logically complete. In applying the wide language of Arts. 14 and 16 to concrete cases a doctrinaire approach should be avoided and the matter considered in a practical way, of course, without whittling down the equality clauses. The classification, in order to be outside the vice of inequality, must, however, be founded on an intelligible differential which on rational grounds distinguishes persons grouped together from those left out. The differences which warrant a classification must be real and substantial and must bear a just and reasonable relation to the object sought to be achieved. If this test is satisfied, then the classification cannot be hit by the vice of inequality. It is in the background of this broad principle that the petitioners grievance is to be considered.3. The relevant provisions in the Indian Railways Establishment Manual directly applicable to the petitioners case may now be seen. They are contained in paras 48 and 49, Chapter I, Section B and paras 16 and 20 (b) of Chapter II. As the petitioners also rely upon paras 17 to 19 and 21 of Chapter II in support of the argument that para 20 (b) is discriminatory it is desirable to reproduce all these paragraphs.A railway servant who, for reasons beyond his control, is unable to appear in the examination /test in his turn along with others, shall be given the examination/test immediately he is available and if he passes the same, he shall be entitled for promotion, to the post as if he had passed the examination/test in his turn.19. Seniority for promotion as Junior Accountants, Junior Inspectors of Station or Stores Accounts.Seniority for promotion to the rank of junior accountant or junior inspector of Station or Stores Accounts should count entirely according to the date of passing the examination qualifying for promotion to those ranks. Candidates who pass the examination in a year are ipso facto senior to those who qualify in subsequent years irrespective of their relative seniority before passing the examination. In the case of staff ofRailways, who are exempted from passing the examination, the date on which they are declared fit for promotion to the rank of Accountant or Inspector should be considered as the date of their passing. On receipt of the result of the above examination each railway administration should immediately hold a selection test of the candidates declared successful along with any eligiblete Railway staff, who may be asked to appear before the selection board in accordance with the procedure laid down by the Railway Board from time to time. While the selection board will determine in the case of thete Railway staff, their suitability for promotion as Accountant/Inspector before placing them on the panel, no candidate who has qualified in the said examination will be declaredfor promotion as a junior Accountant/Inspector, the selection board only assigning a suitable place to each such candidate in order of merit. The staff placed on the panel in any year will rank senior to those empanelled in subsequentis quite clear that para 49 does not confer any right to immediate promotion on those Grade II clerks who pass the qualifying Appendix 2 examination. The only benefit which accrues to them is that one hurdle is removed from their way and they become eligible for being considered for promotion to Grade I. This promotion is governed by the test ofAll those who qualify for promotion are treated at par for this purpose and they are grouped together as constituting on class. The fact that one person has qualified earlier in point of time does not by itself clothe him with a preferential claim to promotion as against those who qualify later. This examination is considered to be a continuous examination and as is clear from para 17, success at this examination does not constitute the basis of seniority which continues to be dependent on the substantive or basic seniority in Grade II. The question which directly arises for determination is: does the procedure laid down in these interactions violate the petitioners right as guaranteed by Arts. 14 and 16. The State which encounters diverse problems arises from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different departments. In the present case the object which is sought to be achieved by the provisions reproduced earlier is the requisite efficiency in the Accounts Department of the Railway Establishment. The departmental authority is the proper judge of its requirements. The direct recruits and the promotees like the petitioners, in our opinion, clearly constitute different classes and this classification is sustainable on intelligible differentia which has a reasonable connection with the object of efficiency sought to be achieved. Promotion to Grade I is guided by the consideration ofIt is, therefore, difficult to find fault with the provision which places in one group all those Grade II who have officiated for some time are not given the credit of this period when a permanent vaancy arises also does not attract the prohibition contained in Arts. 14 and 16. It does not constitute any hostile discrimination and is neither arbitrary nor unreasonable. It applies uniformly to all members of Grade II clerks who have qualified and become eligible.The onus in this ceas is on the petitioners to establish discrimination by showing that the classification does not rest upon any just and reasonable basis. The difference emphasised on behalf of the petitioners is too tenuous to form the basis of a serious argument. Their challenge, therefore, fails.4. The decision in Mervyn Continho v. Collector of Customs, Bombay, 19663SCR 600 = (AIR 1967 SC 52 ), on which reliance has been placed on behalf of the petitioners dealt with a different problem though the principle of law laid down there seems to go against the petitioners submission. It was expressly observed there that there is on inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct rexruits and promotees. The distinction between direct recruits and promotees as two sources of recruitment being a recognised difference, not obnoxious to the equality clauses, the provisions which concern us cannot be struck down on the ration of this decision. | 0 | 2,769 | 1,233 | ### Instruction:
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panel in any year will rank senior to those empanelled in subsequent years.20. Date of passing the departmental examination/test to regulate seniority:(a) Except as provided for in sub-paragraph (b) below, seniority of two or more railway servants, who pass the departmental examination/test on different dates, not treated as one continuous examination, will be regulated entirely by the date of passing the examination or test.(b) The seniority of Accounts Clerks, Grade I and Stock Verifiers is to be determined with reference to their substantive or basic seniority in Grade II irrespective of the dates they qualify for promotion as Clerks, Grade I, by passing the examination prescribed for the purpose.21. Seniority on Promotion to Non-selection posts. - Promotion to non-selection posts shall be on the basis of seniority-cum-suitability being judged by the authority competent to fill the post, by oral and/or written test or a departmental examination as considered necessary and the record of service. The only exception to this would be in cases where for administrative convenience, which should be recorded in writing, the competent authority considers it necessary to appoint a railway servant other than the senior-most suitable railway servant to officiate in a short term vacancy not exceeding two months as a rule and 4 months in any case. This will, however, not give the railway servant any advantage not otherwise due to him."Appendix 2, in addition to the syllabus for the examination, provides:"3. The examination will be conducted by the Head of each office, who will also decide the intervals at which it should be held.4. (a) Normally no railway servant will be permitted to take the examination more than three, but the Financial Adviser and Chief Accounts Officer may in deserving cases permit a candidate to take the examination for a fourth time, and in very exceptional cases, the General Manager may permit a candidate to take the examination for the fifth and the last time.(b) No railway servant, who has less than six months service in a Railway Accounts Office or who had not a reasonable chance of passing the examination will be allowed to appear in the examination prescribed in this Appendix.In exceptional circumstances, the condition regarding six months minimum service may be waived by the General Manager.(c) Temporary railway servants may be permitted to sit for the examination but it should be clearly understood that the passing of this examination will not give them a claim for absorption in the permanent cadre.(d). A candidate who fails in the examination but shows marked excellence by obtaining not less than 50 per cent in any subject may be exempted from further examination in that subject in subsequent examination."It is quite clear that para 49 does not confer any right to immediate promotion on those Grade II clerks who pass the qualifying Appendix 2 examination. The only benefit which accrues to them is that one hurdle is removed from their way and they become eligible for being considered for promotion to Grade I. This promotion is governed by the test of seniority-cum-suitability. All those who qualify for promotion are treated at par for this purpose and they are grouped together as constituting on class. The fact that one person has qualified earlier in point of time does not by itself clothe him with a preferential claim to promotion as against those who qualify later. This examination is considered to be a continuous examination and as is clear from para 17, success at this examination does not constitute the basis of seniority which continues to be dependent on the substantive or basic seniority in Grade II. The question which directly arises for determination is: does the procedure laid down in these interactions violate the petitioners right as guaranteed by Arts. 14 and 16. The State which encounters diverse problems arises from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different departments. In the present case the object which is sought to be achieved by the provisions reproduced earlier is the requisite efficiency in the Accounts Department of the Railway Establishment. The departmental authority is the proper judge of its requirements. The direct recruits and the promotees like the petitioners, in our opinion, clearly constitute different classes and this classification is sustainable on intelligible differentia which has a reasonable connection with the object of efficiency sought to be achieved. Promotion to Grade I is guided by the consideration of seniority-cum-merit. It is, therefore, difficult to find fault with the provision which places in one group all those Grade II who have officiated for some time are not given the credit of this period when a permanent vaancy arises also does not attract the prohibition contained in Arts. 14 and 16. It does not constitute any hostile discrimination and is neither arbitrary nor unreasonable. It applies uniformly to all members of Grade II clerks who have qualified and become eligible.The onus in this ceas is on the petitioners to establish discrimination by showing that the classification does not rest upon any just and reasonable basis. The difference emphasised on behalf of the petitioners is too tenuous to form the basis of a serious argument. Their challenge, therefore, fails.4. The decision in Mervyn Continho v. Collector of Customs, Bombay, 1966- 3SCR 600 = (AIR 1967 SC 52 ), on which reliance has been placed on behalf of the petitioners dealt with a different problem though the principle of law laid down there seems to go against the petitioners submission. It was expressly observed there that there is on inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct rexruits and promotees. The distinction between direct recruits and promotees as two sources of recruitment being a recognised difference, not obnoxious to the equality clauses, the provisions which concern us cannot be struck down on the ration of this decision.
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be founded on an intelligible differential which on rational grounds distinguishes persons grouped together from those left out. The differences which warrant a classification must be real and substantial and must bear a just and reasonable relation to the object sought to be achieved. If this test is satisfied, then the classification cannot be hit by the vice of inequality. It is in the background of this broad principle that the petitioners grievance is to be considered.3. The relevant provisions in the Indian Railways Establishment Manual directly applicable to the petitioners case may now be seen. They are contained in paras 48 and 49, Chapter I, Section B and paras 16 and 20 (b) of Chapter II. As the petitioners also rely upon paras 17 to 19 and 21 of Chapter II in support of the argument that para 20 (b) is discriminatory it is desirable to reproduce all these paragraphs.A railway servant who, for reasons beyond his control, is unable to appear in the examination /test in his turn along with others, shall be given the examination/test immediately he is available and if he passes the same, he shall be entitled for promotion, to the post as if he had passed the examination/test in his turn.19. Seniority for promotion as Junior Accountants, Junior Inspectors of Station or Stores Accounts.Seniority for promotion to the rank of junior accountant or junior inspector of Station or Stores Accounts should count entirely according to the date of passing the examination qualifying for promotion to those ranks. Candidates who pass the examination in a year are ipso facto senior to those who qualify in subsequent years irrespective of their relative seniority before passing the examination. In the case of staff ofRailways, who are exempted from passing the examination, the date on which they are declared fit for promotion to the rank of Accountant or Inspector should be considered as the date of their passing. On receipt of the result of the above examination each railway administration should immediately hold a selection test of the candidates declared successful along with any eligiblete Railway staff, who may be asked to appear before the selection board in accordance with the procedure laid down by the Railway Board from time to time. While the selection board will determine in the case of thete Railway staff, their suitability for promotion as Accountant/Inspector before placing them on the panel, no candidate who has qualified in the said examination will be declaredfor promotion as a junior Accountant/Inspector, the selection board only assigning a suitable place to each such candidate in order of merit. The staff placed on the panel in any year will rank senior to those empanelled in subsequentis quite clear that para 49 does not confer any right to immediate promotion on those Grade II clerks who pass the qualifying Appendix 2 examination. The only benefit which accrues to them is that one hurdle is removed from their way and they become eligible for being considered for promotion to Grade I. This promotion is governed by the test ofAll those who qualify for promotion are treated at par for this purpose and they are grouped together as constituting on class. The fact that one person has qualified earlier in point of time does not by itself clothe him with a preferential claim to promotion as against those who qualify later. This examination is considered to be a continuous examination and as is clear from para 17, success at this examination does not constitute the basis of seniority which continues to be dependent on the substantive or basic seniority in Grade II. The question which directly arises for determination is: does the procedure laid down in these interactions violate the petitioners right as guaranteed by Arts. 14 and 16. The State which encounters diverse problems arises from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different departments. In the present case the object which is sought to be achieved by the provisions reproduced earlier is the requisite efficiency in the Accounts Department of the Railway Establishment. The departmental authority is the proper judge of its requirements. The direct recruits and the promotees like the petitioners, in our opinion, clearly constitute different classes and this classification is sustainable on intelligible differentia which has a reasonable connection with the object of efficiency sought to be achieved. Promotion to Grade I is guided by the consideration ofIt is, therefore, difficult to find fault with the provision which places in one group all those Grade II who have officiated for some time are not given the credit of this period when a permanent vaancy arises also does not attract the prohibition contained in Arts. 14 and 16. It does not constitute any hostile discrimination and is neither arbitrary nor unreasonable. It applies uniformly to all members of Grade II clerks who have qualified and become eligible.The onus in this ceas is on the petitioners to establish discrimination by showing that the classification does not rest upon any just and reasonable basis. The difference emphasised on behalf of the petitioners is too tenuous to form the basis of a serious argument. Their challenge, therefore, fails.4. The decision in Mervyn Continho v. Collector of Customs, Bombay, 19663SCR 600 = (AIR 1967 SC 52 ), on which reliance has been placed on behalf of the petitioners dealt with a different problem though the principle of law laid down there seems to go against the petitioners submission. It was expressly observed there that there is on inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct rexruits and promotees. The distinction between direct recruits and promotees as two sources of recruitment being a recognised difference, not obnoxious to the equality clauses, the provisions which concern us cannot be struck down on the ration of this decision.
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The Rajasthan Marudhara Gramin Bank (RMGB) & Anr Vs. Ramesh Chandra Meena & Anr | else unless the rules or regulation and standing orders, specifically recognize such a right and provide for such representation. 7. Applying law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the respondent employee / respondent delinquent has no absolute right to avail the services by ex-employee of the Bank as his DR in the departmental proceedings. It is true that Regulation 44 puts specific restriction on engagement of a legal practitioner and it provides that for the purpose of an enquiry under Regulation, 2010, the Officer or Employee shall not engage a legal practitioner without prior permission of the competent authority. Therefore, even availing the services of legal practitioner is permissible with the leave of the competent authority. However, Regulation does not specifically provides that an employee can avail the services of any outsider and / or ex- employee of the Bank as DR. Therefore, Regulation, 2010 neither restricts nor permits availing the services of any outsider and / or ex-employee of the Bank as DR and to that extent Regulation is silent. If the reasoning of the High Court is considered, the High Court is of the opinion that as there is no complete or absolute bar even on engaging a lawyer, it is difficult to accept that a retired employee of the Bank cannot be engaged to represent a delinquent officer in the departmental inquiry. However, the High Court has not appreciated the effect of the Handbook. As per Clause 8 of the Handbook Procedure which has been approved by the Board of Directors and it is applicable to all the employees of the Bank and Clause 8 is with respect to the defence representative, it specifically provides that DR should be serving official / employee from the Bank. The said Handbook Procedure which has been approved by the Board of Directors of the Bank is binding to all the employees of the Bank. The High Court has considered Regulation 44 of the Regulation, 2010, however has not considered clause 8 of the Handbook Procedure on the ground that the same cannot be said to be supplementary. However, we are of the opinion that Handbook Procedure can be said to be supplementary. The same cannot be said to be in conflict with the Regulation 44 of Regulation, 2010. As observed herein above, neither Regulation 44 permits nor restricts engagement of an ex-employee of the Bank to be DR. Therefore, Clause 8.2 cannot be said to be in conflict with the provisions of Regulation, 2010. Provisions of Regulation, 2010 and the provisions of Handbook Procedure are required to be read harmoniously, the result can be achieved without any violation of any of the provisions of Regulation, 2010 and the Handbook Procedure. The objects of Regulation 44 of Regulation, 2010 and Clause 8 of the Handbook Procedure seem to be to avoid any outsider including legal representative and / or even ex-employee of the Bank. At the cost of repetition, it is observed that there is no absolute right in favour of the delinquent officers to be represented in the departmental proceedings through the agent of his choice and the same can be restricted by the employer. 8. As per the Bank there is a justification also to permit the delinquent officer to be represented in the departmental proceedings through serving official / employee from the Bank only. The Bank has justified its action of not permitting ex-employee of the Bank as DR and according to the Bank, the ex-employee who themselves may have been subject of a disciplinary enquiry/ chargesheet / dismissed from service; the ex-employee might be a part of vigilance or audit sections who come across a lot of information of confidential nature and therefore, if they are allowed to be DR in the departmental proceedings, which would result in grave injustice; the solemn nature of proceedings is taken away and would result in issues of orderliness as well as decorum when a disgruntled ex-employee is enabled to act as defence representative; they may adopt delay tactics in departmental enquiry and may not permit completion of department enquiry within six months as mandated by the CVC Circular and as per Vigilance Handbook adopted by the Bank. For all the aforesaid reasons not permitting the delinquent officer to be represented through ex-employee of the Bank in the departmental enquiry cannot be said to be in any way in breach of principles of natural justice and / or it violates any of the rights of the delinquent officer. As per settled proposition of law and as observed herein above, in decisions referred to herein above, the only requirement is that delinquent officer must be given fair opportunity to represent his case and that there is no absolute right in his favour to be represented through the agent of his choice. However, at the same time, if the charge is severe and complex nature, then request to be represented through a counsel can be considered keeping in mind Regulation 44 of Regulation, 2010 and if in a particular case, the same is denied, that can be ground to challenge the ultimate outcome of the departmental enquiry. However, as a matter of right in each and every case, irrespective of whether charges is severe and complex nature or not, the employee as a matter of right cannot pray that he may be permitted to represent through the agent of his choice. 9. Now so far as reliance placed upon the decision of the Allahabad High Court in the case of Rakesh Singh (supra) by the learned counsel for the respondent is concerned, it is required to be noted that at the time when the High Court decided the matter no such Clause 8 of the Handbook Procedure was in force. Handbook Procedure has been adopted by the Board of Directors in its meeting held on 15.3.2019. Therefore, the said decision shall not be applicable to the facts of the case on hand. | 1[ds]5. Heard the learned counsel for the respective parties at length. By the impugned judgment and order, the High Court has permitted the respondent employee who is facing disciplinary proceedings to represent through ex-employee of the Bank. While permitting the respondent employee, the High Court while construing Regulation 44 of Regulation, 2010 has observed that the Regulation 44 only restricts representation by a legal practitioner, and even that too is permissible of course with the leave to the competent authority, and there is no complete or absolute bar even on engaging a lawyer, the employee cannot be restrained from availing services of retired employee of a Bank. However, it was the specific case on behalf of the Bank that in view of circular dated 31.01.2014 and clause 8.2 of the Handbook Procedure, the DR should be a serving official / employee from the Bank.6.1. In the case of Kalindi and Ors (supra), it is observed and held that ordinarily in inquiries before domestic tribunals the person accused of any misconduct conducts his own case and therefore, it is not possible to accept the argument that natural justice ex-facie demands that in the case the enquiries into a chargesheet of misconduct against a workman he should be represented by a member of his Union; though of-course an employer in his discretion can and may allow his employee to avail himself of such assistance. The dictum of this decision has been subsequently elucidated.6.2. In the case of the Dunlop Rubber Co. (India) Ltd v. Workmen reported in (1965) 2 SCR 139 , after considering its earlier decision in the case of Kalindri and ors (supra), it is observed and held that there is no per se right to representation in the departmental proceedings through a representative through own union unless the company by its Standing Order recognized such a right. It is observed that refusal to allow representation by any Union unless the Standing Orders confer that right does not vitiate the proceedings. It is further observed that in holding domestic enquiries, reasonable opportunity should be given to the delinquent employees to meet the charge framed against them and it is desirable that at such an enquiry the employee should be given liberty to represent their case by persons of their choice, if there is no standing order against such a course being adopted and if there is nothing otherwise objectionable in the said request. It is further observed that denial of such an opportunity cannot be said to be in violation of principles of natural justice.6.4. In the case of Crescent Dyes and Chemicals Ltd. (supra), it is observed and held that in the departmental proceedings right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing Orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquents right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the case before this Court, the delinquents right to representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and said right stood expanded permitting representation through an officer, staff-member or a member of the Union, on being authorised by the State Government. Holding that the same is permissible and cannot be said to be in violation of principles of natural justice, it is observed that the object and purpose of such provisions are to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly; secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. In the present case also clause 8 permits representation through serving officials / employee from the Bank.6.6. In the case of Indian Overseas Bank (supra), it is observed and held that law does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, specifically recognize such a right and provide for such representation.7. Applying law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the respondent employee / respondent delinquent has no absolute right to avail the services by ex-employee of the Bank as his DR in the departmental proceedings. It is true that Regulation 44 puts specific restriction on engagement of a legal practitioner and it provides that for the purpose of an enquiry under Regulation, 2010, the Officer or Employee shall not engage a legal practitioner without prior permission of the competent authority. Therefore, even availing the services of legal practitioner is permissible with the leave of the competent authority. However, Regulation does not specifically provides that an employee can avail the services of any outsider and / or ex- employee of the Bank as DR. Therefore, Regulation, 2010 neither restricts nor permits availing the services of any outsider and / or ex-employee of the Bank as DR and to that extent Regulation is silent. If the reasoning of the High Court is considered, the High Court is of the opinion that as there is no complete or absolute bar even on engaging a lawyer, it is difficult to accept that a retired employee of the Bank cannot be engaged to represent a delinquent officer in the departmental inquiry. However, the High Court has not appreciated the effect of the Handbook. As per Clause 8 of the Handbook Procedure which has been approved by the Board of Directors and it is applicable to all the employees of the Bank and Clause 8 is with respect to the defence representative, it specifically provides that DR should be serving official / employee from the Bank. The said Handbook Procedure which has been approved by the Board of Directors of the Bank is binding to all the employees of the Bank. The High Court has considered Regulation 44 of the Regulation, 2010, however has not considered clause 8 of the Handbook Procedure on the ground that the same cannot be said to be supplementary. However, we are of the opinion that Handbook Procedure can be said to be supplementary. The same cannot be said to be in conflict with the Regulation 44 of Regulation, 2010. As observed herein above, neither Regulation 44 permits nor restricts engagement of an ex-employee of the Bank to be DR. Therefore, Clause 8.2 cannot be said to be in conflict with the provisions of Regulation, 2010. Provisions of Regulation, 2010 and the provisions of Handbook Procedure are required to be read harmoniously, the result can be achieved without any violation of any of the provisions of Regulation, 2010 and the Handbook Procedure. The objects of Regulation 44 of Regulation, 2010 and Clause 8 of the Handbook Procedure seem to be to avoid any outsider including legal representative and / or even ex-employee of the Bank. At the cost of repetition, it is observed that there is no absolute right in favour of the delinquent officers to be represented in the departmental proceedings through the agent of his choice and the same can be restricted by the employer.8. As per the Bank there is a justification also to permit the delinquent officer to be represented in the departmental proceedings through serving official / employee from the Bank only. The Bank has justified its action of not permitting ex-employee of the Bank as DR and according to the Bank, the ex-employee who themselves may have been subject of a disciplinary enquiry/ chargesheet / dismissed from service; the ex-employee might be a part of vigilance or audit sections who come across a lot of information of confidential nature and therefore, if they are allowed to be DR in the departmental proceedings, which would result in grave injustice; the solemn nature of proceedings is taken away and would result in issues of orderliness as well as decorum when a disgruntled ex-employee is enabled to act as defence representative; they may adopt delay tactics in departmental enquiry and may not permit completion of department enquiry within six months as mandated by the CVC Circular and as per Vigilance Handbook adopted by the Bank. For all the aforesaid reasons not permitting the delinquent officer to be represented through ex-employee of the Bank in the departmental enquiry cannot be said to be in any way in breach of principles of natural justice and / or it violates any of the rights of the delinquent officer. As per settled proposition of law and as observed herein above, in decisions referred to herein above, the only requirement is that delinquent officer must be given fair opportunity to represent his case and that there is no absolute right in his favour to be represented through the agent of his choice. However, at the same time, if the charge is severe and complex nature, then request to be represented through a counsel can be considered keeping in mind Regulation 44 of Regulation, 2010 and if in a particular case, the same is denied, that can be ground to challenge the ultimate outcome of the departmental enquiry. However, as a matter of right in each and every case, irrespective of whether charges is severe and complex nature or not, the employee as a matter of right cannot pray that he may be permitted to represent through the agent of his choice.9. Now so far as reliance placed upon the decision of the Allahabad High Court in the case of Rakesh Singh (supra) by the learned counsel for the respondent is concerned, it is required to be noted that at the time when the High Court decided the matter no such Clause 8 of the Handbook Procedure was in force. Handbook Procedure has been adopted by the Board of Directors in its meeting held on 15.3.2019. Therefore, the said decision shall not be applicable to the facts of the case on hand. | 1 | 4,741 | 1,872 | ### Instruction:
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else unless the rules or regulation and standing orders, specifically recognize such a right and provide for such representation. 7. Applying law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the respondent employee / respondent delinquent has no absolute right to avail the services by ex-employee of the Bank as his DR in the departmental proceedings. It is true that Regulation 44 puts specific restriction on engagement of a legal practitioner and it provides that for the purpose of an enquiry under Regulation, 2010, the Officer or Employee shall not engage a legal practitioner without prior permission of the competent authority. Therefore, even availing the services of legal practitioner is permissible with the leave of the competent authority. However, Regulation does not specifically provides that an employee can avail the services of any outsider and / or ex- employee of the Bank as DR. Therefore, Regulation, 2010 neither restricts nor permits availing the services of any outsider and / or ex-employee of the Bank as DR and to that extent Regulation is silent. If the reasoning of the High Court is considered, the High Court is of the opinion that as there is no complete or absolute bar even on engaging a lawyer, it is difficult to accept that a retired employee of the Bank cannot be engaged to represent a delinquent officer in the departmental inquiry. However, the High Court has not appreciated the effect of the Handbook. As per Clause 8 of the Handbook Procedure which has been approved by the Board of Directors and it is applicable to all the employees of the Bank and Clause 8 is with respect to the defence representative, it specifically provides that DR should be serving official / employee from the Bank. The said Handbook Procedure which has been approved by the Board of Directors of the Bank is binding to all the employees of the Bank. The High Court has considered Regulation 44 of the Regulation, 2010, however has not considered clause 8 of the Handbook Procedure on the ground that the same cannot be said to be supplementary. However, we are of the opinion that Handbook Procedure can be said to be supplementary. The same cannot be said to be in conflict with the Regulation 44 of Regulation, 2010. As observed herein above, neither Regulation 44 permits nor restricts engagement of an ex-employee of the Bank to be DR. Therefore, Clause 8.2 cannot be said to be in conflict with the provisions of Regulation, 2010. Provisions of Regulation, 2010 and the provisions of Handbook Procedure are required to be read harmoniously, the result can be achieved without any violation of any of the provisions of Regulation, 2010 and the Handbook Procedure. The objects of Regulation 44 of Regulation, 2010 and Clause 8 of the Handbook Procedure seem to be to avoid any outsider including legal representative and / or even ex-employee of the Bank. At the cost of repetition, it is observed that there is no absolute right in favour of the delinquent officers to be represented in the departmental proceedings through the agent of his choice and the same can be restricted by the employer. 8. As per the Bank there is a justification also to permit the delinquent officer to be represented in the departmental proceedings through serving official / employee from the Bank only. The Bank has justified its action of not permitting ex-employee of the Bank as DR and according to the Bank, the ex-employee who themselves may have been subject of a disciplinary enquiry/ chargesheet / dismissed from service; the ex-employee might be a part of vigilance or audit sections who come across a lot of information of confidential nature and therefore, if they are allowed to be DR in the departmental proceedings, which would result in grave injustice; the solemn nature of proceedings is taken away and would result in issues of orderliness as well as decorum when a disgruntled ex-employee is enabled to act as defence representative; they may adopt delay tactics in departmental enquiry and may not permit completion of department enquiry within six months as mandated by the CVC Circular and as per Vigilance Handbook adopted by the Bank. For all the aforesaid reasons not permitting the delinquent officer to be represented through ex-employee of the Bank in the departmental enquiry cannot be said to be in any way in breach of principles of natural justice and / or it violates any of the rights of the delinquent officer. As per settled proposition of law and as observed herein above, in decisions referred to herein above, the only requirement is that delinquent officer must be given fair opportunity to represent his case and that there is no absolute right in his favour to be represented through the agent of his choice. However, at the same time, if the charge is severe and complex nature, then request to be represented through a counsel can be considered keeping in mind Regulation 44 of Regulation, 2010 and if in a particular case, the same is denied, that can be ground to challenge the ultimate outcome of the departmental enquiry. However, as a matter of right in each and every case, irrespective of whether charges is severe and complex nature or not, the employee as a matter of right cannot pray that he may be permitted to represent through the agent of his choice. 9. Now so far as reliance placed upon the decision of the Allahabad High Court in the case of Rakesh Singh (supra) by the learned counsel for the respondent is concerned, it is required to be noted that at the time when the High Court decided the matter no such Clause 8 of the Handbook Procedure was in force. Handbook Procedure has been adopted by the Board of Directors in its meeting held on 15.3.2019. Therefore, the said decision shall not be applicable to the facts of the case on hand.
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representation by somebody else unless the rules or regulation and standing orders, specifically recognize such a right and provide for such representation.7. Applying law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the respondent employee / respondent delinquent has no absolute right to avail the services by ex-employee of the Bank as his DR in the departmental proceedings. It is true that Regulation 44 puts specific restriction on engagement of a legal practitioner and it provides that for the purpose of an enquiry under Regulation, 2010, the Officer or Employee shall not engage a legal practitioner without prior permission of the competent authority. Therefore, even availing the services of legal practitioner is permissible with the leave of the competent authority. However, Regulation does not specifically provides that an employee can avail the services of any outsider and / or ex- employee of the Bank as DR. Therefore, Regulation, 2010 neither restricts nor permits availing the services of any outsider and / or ex-employee of the Bank as DR and to that extent Regulation is silent. If the reasoning of the High Court is considered, the High Court is of the opinion that as there is no complete or absolute bar even on engaging a lawyer, it is difficult to accept that a retired employee of the Bank cannot be engaged to represent a delinquent officer in the departmental inquiry. However, the High Court has not appreciated the effect of the Handbook. As per Clause 8 of the Handbook Procedure which has been approved by the Board of Directors and it is applicable to all the employees of the Bank and Clause 8 is with respect to the defence representative, it specifically provides that DR should be serving official / employee from the Bank. The said Handbook Procedure which has been approved by the Board of Directors of the Bank is binding to all the employees of the Bank. The High Court has considered Regulation 44 of the Regulation, 2010, however has not considered clause 8 of the Handbook Procedure on the ground that the same cannot be said to be supplementary. However, we are of the opinion that Handbook Procedure can be said to be supplementary. The same cannot be said to be in conflict with the Regulation 44 of Regulation, 2010. As observed herein above, neither Regulation 44 permits nor restricts engagement of an ex-employee of the Bank to be DR. Therefore, Clause 8.2 cannot be said to be in conflict with the provisions of Regulation, 2010. Provisions of Regulation, 2010 and the provisions of Handbook Procedure are required to be read harmoniously, the result can be achieved without any violation of any of the provisions of Regulation, 2010 and the Handbook Procedure. The objects of Regulation 44 of Regulation, 2010 and Clause 8 of the Handbook Procedure seem to be to avoid any outsider including legal representative and / or even ex-employee of the Bank. At the cost of repetition, it is observed that there is no absolute right in favour of the delinquent officers to be represented in the departmental proceedings through the agent of his choice and the same can be restricted by the employer.8. As per the Bank there is a justification also to permit the delinquent officer to be represented in the departmental proceedings through serving official / employee from the Bank only. The Bank has justified its action of not permitting ex-employee of the Bank as DR and according to the Bank, the ex-employee who themselves may have been subject of a disciplinary enquiry/ chargesheet / dismissed from service; the ex-employee might be a part of vigilance or audit sections who come across a lot of information of confidential nature and therefore, if they are allowed to be DR in the departmental proceedings, which would result in grave injustice; the solemn nature of proceedings is taken away and would result in issues of orderliness as well as decorum when a disgruntled ex-employee is enabled to act as defence representative; they may adopt delay tactics in departmental enquiry and may not permit completion of department enquiry within six months as mandated by the CVC Circular and as per Vigilance Handbook adopted by the Bank. For all the aforesaid reasons not permitting the delinquent officer to be represented through ex-employee of the Bank in the departmental enquiry cannot be said to be in any way in breach of principles of natural justice and / or it violates any of the rights of the delinquent officer. As per settled proposition of law and as observed herein above, in decisions referred to herein above, the only requirement is that delinquent officer must be given fair opportunity to represent his case and that there is no absolute right in his favour to be represented through the agent of his choice. However, at the same time, if the charge is severe and complex nature, then request to be represented through a counsel can be considered keeping in mind Regulation 44 of Regulation, 2010 and if in a particular case, the same is denied, that can be ground to challenge the ultimate outcome of the departmental enquiry. However, as a matter of right in each and every case, irrespective of whether charges is severe and complex nature or not, the employee as a matter of right cannot pray that he may be permitted to represent through the agent of his choice.9. Now so far as reliance placed upon the decision of the Allahabad High Court in the case of Rakesh Singh (supra) by the learned counsel for the respondent is concerned, it is required to be noted that at the time when the High Court decided the matter no such Clause 8 of the Handbook Procedure was in force. Handbook Procedure has been adopted by the Board of Directors in its meeting held on 15.3.2019. Therefore, the said decision shall not be applicable to the facts of the case on hand.
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Thakur Manmohan Deo And Another Vs. The State Of Bihar And Others.(And Connected Appeal) | of S. 32. The short question before us is - are Government ghatwalis excluded from the ambit of the Act by reason of sub-s. (4) of S. 32? Let us assume without deciding, that sub-s. (4) does not apply to ghatwali tenures. What is the result? Section 32, merely provides for the manner of payment of compensation. If sub-s. (4) does not apply, the payment of compensation will have to be made in accordance with sub-s. (1) of S. 32 which says :"S. 32(1). When the time within which appeals under section 27 may be made in respect of any entry in or omission from a Compensation Assessment-roll has expired or where any such appeal has been made under that section and the same has been disposed of, the Compensation Officer shall proceed to make payment, in the manner provided in this section, to the proprietors, tenure-holders and other persons who are shown in such Compensation Assessment-roll as finally published under Section 28 to be entitled to compensation, of the compensation payable to them in terms of the said roll after deducting from the amount of any compensation so payable any amount which has been ordered by the Collector under clause (c) of Section 4 or under any other section to be so deducted. Therefore, the result is not that Government ghatwalis will go out of the Act, because sub-s. (4) does not apply. The result only is that the holders of such tenures will be paid compensation in a different manner. What rights others having a proprietary interest in a ghatwali tenure have against the compensation money does not fall for decision here. 10. Therefore, we are of the view that neither S. 23(1) (f) nor S. 32(4) have the necessary and inevitable result contended for by the appellants, viz., that the appellants ghatwali tenures must be excluded from the operation of the Act even though the definition clauses expressly include them. 11. This brings us to the second point urged before us. That point can be disposed of very shortly. It is contended that if the provisions of the Act apply to Government ghatwalis, then the Act falls outside the legislative competence of the State Legislature inasmuch as the Act then becomes legislation with regard to items 1 and 2 of the Union List. These two items are -"1. Defence of India and every part thereof including preparation for defence and all such acts as may be conductive in times of war to its prosecution and after its termination to effective demobilisation. 2. Naval, military and air forces; any other armed forces of the Union. It is, we think, quite obvious that the Act has no connection whatsoever with the defence of India or the armed forces of the Union.As Lord Sumner had pointed out as far back as 1923, though ghatwali duties might be divided into police duties and quasi-military duties, both classes had lost their importance and the latter were rarely if ever demanded. This Court had observed in 1952 SCR 889 : (AIR 1952 SC 252 ) :"The pith and substance of the legislation, however, in my opinion is the transference of ownership of estates to the State Government and falls within the ambit of legislative head entry 36 of List II. There is no scheme of land reform within the framework of the statute except that a pious hope in expressed that the commission may produce one. The Bihar Legislature was certainly competent to make the law on the subject of transference of estates and the Act as regards such transfers it constitutional. (per Mahajan, J. at p. 926 of the report) (of SCR : at p. 270 of AIR). We think that in pith and substance the legislation was covered by item 36 of List II (as it then stood) and it has no relation to items 1 and 2 of List I. 12. Now, as to the last argument founded on Regulation XXIX of 1814.In our view the Act in pith and substance related to acquisition of property and consequently no question of the repeal of Regulation XXIX of 1914 arose; nor is it necessary to consider the principle that a special law relating to special tenures is not affected by a subsequent general law of land reforms. Such a principle has no application in the present case. The Act expressly includes all ghatwali tenures within its ambit and provides for the vesting of all rights therein absolutely in the State of Bihar on the issue of a notification under S. 3 and under S. 4 certain consequences ensue on the issue of such a notification notwithstanding anything contained in any other law for the time being in force.It is worthy of note that the Bengal Permanent Settlement Regulation, 1793 (Bengal Regulation I of 1793), did not stand in the way of acquisition of other permanently settled estates, and it is difficult to see how Regulation XXIX of 1814 can stand in the way of acquisition of ghatwali tenures. The point is really covered by the decision of this Court in Suriya Pal Singh v. State of U. P., 1951 SCR 1056 at pp. 1078-79 : (AIR 1952 SC 252 (306) at p. 313), where it was observed :"The Crown cannot deprive a legislature of its legislative authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority exists and no court can annual the enactment of a legislative body acting within the legitimate scope of its sovereign competence. If, therefore, it be found that the subject of a Crown grant is within the competence of a provincial legislature, nothing can prevent that legislature from legislating about it, unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally. 13. For the reasons given above, we hold that none of t he three points urged on behalf of the appellants has any substance. | 0[ds]7. Where a statute says in express terms that the expression tenure includes a ghatwali tenure and the expression tenure-holder includes a ghatwal and the successors-in-interest of a ghatwal, there must be compelling reasons to cut down the amplitude of the two expressions. The Bihar legislature must have been aware of the distinction between Government ghatwalis and zamindari ghatwalis and if the intention was to exclude Government ghatwalis, nothing could have been easier than to say in the two definition clauses that they did not include Government ghatwalis. On the contrary, the legislature made no distinction between Government ghatwalis and zamindari ghatwalis but included all ghatwali tenures within the definition clauses. There are no restrictive words in the definition claused and we see no reasons why any restriction should be read into them. It is worthy of note that the two definition clauses first state in the substantive part what the general meaning of the two expressions is, and then say that the expressions shall inter alia include a ghatwali tenure and a ghatwal and the successors-in-interest of a ghatwal. Thus, the two definition clauses are artificially extended so as to include all ghatwali tenures and all ghatwals and their successors-in-interest, irrespective of any consideration as to whether they come within the general meaning state in the substantive part of the two clauses. Such artificial extension of the two definition clauses is also apparent from sub-cl. (v) of cl. (r) and sub-cl. (iii) of cl. (q). Sub-clause (iii) of cl. (q) excludes certain tenures from the definition clause which would otherwise come within the general meaning of the expression tenure, and sub-cl. (v) of cl. (r) extends the expression tenure holder to guardians, committees and curators. When we are dealing with an artificial definition of this kind which states "means and shall include etc., there is no room for an argument that even though the definition expressly states that something is included within a particular expression, it must be excluded by reason of its now coming within the general meaning of that expressionIt is enough to point out that assuming that the argument of the appellants is correct and cl .(f) of S. 23(1) does not apply, it does not necessarily follow that the appellants ghatwali tenures cannot be acquired by the State Government under S. 3 of the Act. Section 23(1) (f) provides only for the deduction of a particular item from the gross asset of the tenure-holder for the purpose of computing the net income. Even if cl. (f) does not apply, the statute provides for other deductions mentioned in clauses (a) to (e). Those clauses indisputably apply to a ghatwali tenure and a Compensation Assessment-roll can be prepared on their basis. It would not be correct to say that because a particular item of deduction does not apply in the case of a Government ghatwali, such ghatwali tenure must be excluded from the ambit of the Act; such a view will be inconsistent with the scheme of S23. The scheme of S. 23 is that certain deductions have to be made to compute the net income; some of the items may apply in one case and some may not apply. The section does not contemplate that all the items must apply in the case of each and every proprietor or tenure-holderTherefore, the result is not that Government ghatwalis will go out of the Act, because sub-s. (4) does not apply. The result only is that the holders of such tenures will be paid compensation in a different manner. What rights others having a proprietary interest in a ghatwali tenure have against the compensation money does not fall for decision here10. Therefore, we are of the view that neither S. 23(1) (f) nor S. 32(4) have the necessary and inevitable result contended for by the appellants, viz., that the appellants ghatwali tenures must be excluded from the operation of the Act even though the definition clauses expressly include themIt is, we think, quite obvious that the Act has no connection whatsoever with the defence of India or the armed forces of the Union.As Lord Sumner had pointed out as far back as 1923, though ghatwali duties might be divided into police duties and quasi-military duties, both classes had lost their importance and the latter were rarely if ever demanded12. Now, as to the last argument founded on Regulation XXIX of 1814.In our view the Act in pith and substance related to acquisition of property and consequently no question of the repeal of Regulation XXIX of 1914 arose; nor is it necessary to consider the principle that a special law relating to special tenures is not affected by a subsequent general law of land reforms. Such a principle has no application in the present case. The Act expressly includes all ghatwali tenures within its ambit and provides for the vesting of all rights therein absolutely in the State of Bihar on the issue of a notification under S. 3 and under S. 4 certain consequences ensue on the issue of such a notification notwithstanding anything contained in any other law for the time being in force.It is worthy of note that the Bengal Permanent Settlement Regulation, 1793 (Bengal Regulation I of 1793), did not stand in the way of acquisition of other permanently settled estates, and it is difficult to see how Regulation XXIX of 1814 can stand in the way of acquisition of ghatwali tenuresFor the reasons given above, we hold that none of t he three points urged on behalf of the appellants has any substance. | 0 | 5,242 | 1,040 | ### Instruction:
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of S. 32. The short question before us is - are Government ghatwalis excluded from the ambit of the Act by reason of sub-s. (4) of S. 32? Let us assume without deciding, that sub-s. (4) does not apply to ghatwali tenures. What is the result? Section 32, merely provides for the manner of payment of compensation. If sub-s. (4) does not apply, the payment of compensation will have to be made in accordance with sub-s. (1) of S. 32 which says :"S. 32(1). When the time within which appeals under section 27 may be made in respect of any entry in or omission from a Compensation Assessment-roll has expired or where any such appeal has been made under that section and the same has been disposed of, the Compensation Officer shall proceed to make payment, in the manner provided in this section, to the proprietors, tenure-holders and other persons who are shown in such Compensation Assessment-roll as finally published under Section 28 to be entitled to compensation, of the compensation payable to them in terms of the said roll after deducting from the amount of any compensation so payable any amount which has been ordered by the Collector under clause (c) of Section 4 or under any other section to be so deducted. Therefore, the result is not that Government ghatwalis will go out of the Act, because sub-s. (4) does not apply. The result only is that the holders of such tenures will be paid compensation in a different manner. What rights others having a proprietary interest in a ghatwali tenure have against the compensation money does not fall for decision here. 10. Therefore, we are of the view that neither S. 23(1) (f) nor S. 32(4) have the necessary and inevitable result contended for by the appellants, viz., that the appellants ghatwali tenures must be excluded from the operation of the Act even though the definition clauses expressly include them. 11. This brings us to the second point urged before us. That point can be disposed of very shortly. It is contended that if the provisions of the Act apply to Government ghatwalis, then the Act falls outside the legislative competence of the State Legislature inasmuch as the Act then becomes legislation with regard to items 1 and 2 of the Union List. These two items are -"1. Defence of India and every part thereof including preparation for defence and all such acts as may be conductive in times of war to its prosecution and after its termination to effective demobilisation. 2. Naval, military and air forces; any other armed forces of the Union. It is, we think, quite obvious that the Act has no connection whatsoever with the defence of India or the armed forces of the Union.As Lord Sumner had pointed out as far back as 1923, though ghatwali duties might be divided into police duties and quasi-military duties, both classes had lost their importance and the latter were rarely if ever demanded. This Court had observed in 1952 SCR 889 : (AIR 1952 SC 252 ) :"The pith and substance of the legislation, however, in my opinion is the transference of ownership of estates to the State Government and falls within the ambit of legislative head entry 36 of List II. There is no scheme of land reform within the framework of the statute except that a pious hope in expressed that the commission may produce one. The Bihar Legislature was certainly competent to make the law on the subject of transference of estates and the Act as regards such transfers it constitutional. (per Mahajan, J. at p. 926 of the report) (of SCR : at p. 270 of AIR). We think that in pith and substance the legislation was covered by item 36 of List II (as it then stood) and it has no relation to items 1 and 2 of List I. 12. Now, as to the last argument founded on Regulation XXIX of 1814.In our view the Act in pith and substance related to acquisition of property and consequently no question of the repeal of Regulation XXIX of 1914 arose; nor is it necessary to consider the principle that a special law relating to special tenures is not affected by a subsequent general law of land reforms. Such a principle has no application in the present case. The Act expressly includes all ghatwali tenures within its ambit and provides for the vesting of all rights therein absolutely in the State of Bihar on the issue of a notification under S. 3 and under S. 4 certain consequences ensue on the issue of such a notification notwithstanding anything contained in any other law for the time being in force.It is worthy of note that the Bengal Permanent Settlement Regulation, 1793 (Bengal Regulation I of 1793), did not stand in the way of acquisition of other permanently settled estates, and it is difficult to see how Regulation XXIX of 1814 can stand in the way of acquisition of ghatwali tenures. The point is really covered by the decision of this Court in Suriya Pal Singh v. State of U. P., 1951 SCR 1056 at pp. 1078-79 : (AIR 1952 SC 252 (306) at p. 313), where it was observed :"The Crown cannot deprive a legislature of its legislative authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority exists and no court can annual the enactment of a legislative body acting within the legitimate scope of its sovereign competence. If, therefore, it be found that the subject of a Crown grant is within the competence of a provincial legislature, nothing can prevent that legislature from legislating about it, unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally. 13. For the reasons given above, we hold that none of t he three points urged on behalf of the appellants has any substance.
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7. Where a statute says in express terms that the expression tenure includes a ghatwali tenure and the expression tenure-holder includes a ghatwal and the successors-in-interest of a ghatwal, there must be compelling reasons to cut down the amplitude of the two expressions. The Bihar legislature must have been aware of the distinction between Government ghatwalis and zamindari ghatwalis and if the intention was to exclude Government ghatwalis, nothing could have been easier than to say in the two definition clauses that they did not include Government ghatwalis. On the contrary, the legislature made no distinction between Government ghatwalis and zamindari ghatwalis but included all ghatwali tenures within the definition clauses. There are no restrictive words in the definition claused and we see no reasons why any restriction should be read into them. It is worthy of note that the two definition clauses first state in the substantive part what the general meaning of the two expressions is, and then say that the expressions shall inter alia include a ghatwali tenure and a ghatwal and the successors-in-interest of a ghatwal. Thus, the two definition clauses are artificially extended so as to include all ghatwali tenures and all ghatwals and their successors-in-interest, irrespective of any consideration as to whether they come within the general meaning state in the substantive part of the two clauses. Such artificial extension of the two definition clauses is also apparent from sub-cl. (v) of cl. (r) and sub-cl. (iii) of cl. (q). Sub-clause (iii) of cl. (q) excludes certain tenures from the definition clause which would otherwise come within the general meaning of the expression tenure, and sub-cl. (v) of cl. (r) extends the expression tenure holder to guardians, committees and curators. When we are dealing with an artificial definition of this kind which states "means and shall include etc., there is no room for an argument that even though the definition expressly states that something is included within a particular expression, it must be excluded by reason of its now coming within the general meaning of that expressionIt is enough to point out that assuming that the argument of the appellants is correct and cl .(f) of S. 23(1) does not apply, it does not necessarily follow that the appellants ghatwali tenures cannot be acquired by the State Government under S. 3 of the Act. Section 23(1) (f) provides only for the deduction of a particular item from the gross asset of the tenure-holder for the purpose of computing the net income. Even if cl. (f) does not apply, the statute provides for other deductions mentioned in clauses (a) to (e). Those clauses indisputably apply to a ghatwali tenure and a Compensation Assessment-roll can be prepared on their basis. It would not be correct to say that because a particular item of deduction does not apply in the case of a Government ghatwali, such ghatwali tenure must be excluded from the ambit of the Act; such a view will be inconsistent with the scheme of S23. The scheme of S. 23 is that certain deductions have to be made to compute the net income; some of the items may apply in one case and some may not apply. The section does not contemplate that all the items must apply in the case of each and every proprietor or tenure-holderTherefore, the result is not that Government ghatwalis will go out of the Act, because sub-s. (4) does not apply. The result only is that the holders of such tenures will be paid compensation in a different manner. What rights others having a proprietary interest in a ghatwali tenure have against the compensation money does not fall for decision here10. Therefore, we are of the view that neither S. 23(1) (f) nor S. 32(4) have the necessary and inevitable result contended for by the appellants, viz., that the appellants ghatwali tenures must be excluded from the operation of the Act even though the definition clauses expressly include themIt is, we think, quite obvious that the Act has no connection whatsoever with the defence of India or the armed forces of the Union.As Lord Sumner had pointed out as far back as 1923, though ghatwali duties might be divided into police duties and quasi-military duties, both classes had lost their importance and the latter were rarely if ever demanded12. Now, as to the last argument founded on Regulation XXIX of 1814.In our view the Act in pith and substance related to acquisition of property and consequently no question of the repeal of Regulation XXIX of 1914 arose; nor is it necessary to consider the principle that a special law relating to special tenures is not affected by a subsequent general law of land reforms. Such a principle has no application in the present case. The Act expressly includes all ghatwali tenures within its ambit and provides for the vesting of all rights therein absolutely in the State of Bihar on the issue of a notification under S. 3 and under S. 4 certain consequences ensue on the issue of such a notification notwithstanding anything contained in any other law for the time being in force.It is worthy of note that the Bengal Permanent Settlement Regulation, 1793 (Bengal Regulation I of 1793), did not stand in the way of acquisition of other permanently settled estates, and it is difficult to see how Regulation XXIX of 1814 can stand in the way of acquisition of ghatwali tenuresFor the reasons given above, we hold that none of t he three points urged on behalf of the appellants has any substance.
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State Of Kerala Vs. M/S. Vijaya Stores | Commissioner has been preferred under sub-section (1) by the other party, may, notwithstanding that he has not appealed against such order or any part thereof, file, within thirty days of the receipt of the notice, a memorandum of cross-objections, verified in the prescribed manner against any part of the Appellate Assistant Commissioner, and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (1)(3) The appeal or the memorandum of cross-objections shall be in the prescribed form and shall be verified in the prescribed manner, and, in the case of an appeal preferred by any person other than an officer empowered by the Government under sub-section (1), it shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed(4) In disposing of an appeal, the Appellate Tribunal may, after giving the parties a reasonable opportunity of being heard either in person or by a representative, --(a) in the case of an order of assessment or penalty--(i) confirm, reduce, enhance or annul the assessment or penalty or both;(ii) set aside the assessment and direct the assessing authority to make a fresh assesment after such further enquiry as may be directed; or(iii) pass such other orders as it may think fit; or(b) in the case of any other order, confirm, cancel or vary such order."Considerable emphasis was laid by counsel for the appellant upon sub-s. (4) which indicates what things the Appellate Tribunal may do while disposing of an appeal and in particular it was pointed out that under sub-s. (4)(a)(i) the Appellate Tribunal has been given power "to enhance the assessment" while disposing of an appeal against an order of assessment after giving the party a reasonable opportunity of being heard and it was urged that such power could be exercised even when the appeal against the AACs assessment order had been preferred by the assessee and not by the department. To place such a construction on sub-s. (4)(a)(i) would amount to ignoring the scheme of s. 39. Sub-s. (1) provides for an appeal being preferred against an assessment order passed by the AAC under s. 34(3) either by the assessee or by the department through an officer empowered by the Government in that behalf. Further, sub-s. (2) provides for filing of cross-objections by a party, against whom an appeal has been preferred, notwithstanding that he has not himself appealed against the decision or any part thereof and such cross-objections are to be disposed of by the Appellate Tribunal as if it were an appeal. Then comes sub-s. (4) which enumerates the various powers conferred upon the Appellate Tribunal while disposing of such appeals (including cross-objections) and the power conferred upon the Appellate Tribunal under sub-s. (4)(a)(i) is "to confirm, reduce, enhance or annul the assessment"; the power to enhance the assessment must be appropriately read as relatable to an appeal or cross-objections filed by the department. The normal rule that a party not appealing from a decision must be deemed to be satisfied with the decision, must be taken to have acquiesced therein and be bound by it, and, therefore, cannot seek relief against a rival party in an appeal preferred by the latter, has not been deviated from in sub-s. (4)(a)(i) above. In other words, in the absence of an appeal or cross-objections by the department against the AACs order the Appellate Tribunal will have no jurisdiction or power to enhance the assessment. Further, to accept the construction placed by the counsel for the appellant on sub-s. (4)(a)(i) would be really rendering sub-s. (2) of s. 39 otiose, for if in an appeal preferred by the assessee against the AACs order, the Tribunal would have the power to enhance the assessment, a provision for cross-objections by the department was really unnecessary. Having regard to the entire scheme of s. 39, therefore, it is clear that on a true and proper construction of sub-s. (4)(a)(i) of s. 39 the Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal or cross-objections by the departmentIt is true that the two Bombay decisions reported in [1945] 13 ITR 272 and [1957] 31 ITR 844 , on which the High Court has relied, have been rendered in relation to s. 33(4) of the Indian I.T. Act, 1922, but, in our view, the said provision of I.T. Act is in pari materia with the provision of s. 39(4) of the Kerala General Sales Tax Act, 1963. Moreover, the Bombay High Court has pointed out in those decisions that s. 33(4) merely enacted what was the elementary principle to be found in the Civil Procedure Code that the respondent who has neither preferred his own appeal nor filed cross-objections in the appeal preferred by the appellant, must be deemed to be satisfied with the decision of the lower authority and he will not be entitled to seek relief against a rival party in an appeal preferred by the latter. In the first mentioned case, the elementary principle is stated at page 282 of the report thus:"Apart from statute, it is elementary that if a party appeals, he is the party who comes before the Appellate Tribunal to redress a grievance alleged by him. If the other side has any grievance, he has a right to file a cross-appeal or cross-objections. But, if no such thing is done, the other party, in law, is deemed to be satisfied with the decision. He is, of course, entitled to support the judgment of the first officer on any ground open to him, but he is not entitled to raise a ground so as to work adversely to the appellant and in his favour."3. As regards the decision of the Orissa High Court in CST v. Chunilal Parameswar Lal [1961] 12 STC 677 , the same cannot avail the appellant, for the decision in that case was rendered on a concession made by the assessees counsel.4. | 0[ds]For the reasons which we shall presently indicate it is not possible to accept either of these contentions urged by counsel for theplace such a construction on(4)(a)(i) would amount to ignoring the scheme of s. 39.(1) provides for an appeal being preferred against an assessment order passed by the AAC under s. 34(3) either by the assessee or by the department through an officer empowered by the Government in that behalf. Further,(2) provides for filing ofby a party, against whom an appeal has been preferred, notwithstanding that he has not himself appealed against the decision or any part thereof and suchare to be disposed of by the Appellate Tribunal as if it were an appeal. Then comes(4) which enumerates the various powers conferred upon the Appellate Tribunal while disposing of such appeals (includingand the power conferred upon the Appellate Tribunal under(4)(a)(i) is "to confirm, reduce, enhance or annul the assessment"; the power to enhance the assessment must be appropriately read as relatable to an appeal orfiled by the department. The normal rule that a party not appealing from a decision must be deemed to be satisfied with the decision, must be taken to have acquiesced therein and be bound by it, and, therefore, cannot seek relief against a rival party in an appeal preferred by the latter, has not been deviated from in(4)(a)(i) above. In other words, in the absence of an appeal orby the department against the AACs order the Appellate Tribunal will have no jurisdiction or power to enhance the assessment. Further, to accept the construction placed by the counsel for the appellant on(4)(a)(i) would be really rendering(2) of s. 39 otiose, for if in an appeal preferred by the assessee against the AACs order, the Tribunal would have the power to enhance the assessment, a provision forby the department was really unnecessary. Having regard to the entire scheme of s. 39, therefore, it is clear that on a true and proper construction of(4)(a)(i) of s. 39 the Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal orby the departmentIt is true that the two Bombay decisions reported in [1945] 13 ITR 272 and [1957] 31 ITR 844 , on which the High Court has relied, have been rendered in relation to s. 33(4) of the Indian I.T. Act, 1922, but, in our view, the said provision of I.T. Act is in pari materia with the provision of s. 39(4) of the Kerala General Sales Tax Act, 1963. Moreover, the Bombay High Court has pointed out in those decisions that s. 33(4) merely enacted what was the elementary principle to be found in the Civil Procedure Code that the respondent who has neither preferred his own appeal nor filedin the appeal preferred by the appellant, must be deemed to be satisfied with the decision of the lower authority and he will not be entitled to seek relief against a rival party in an appeal preferred by the latter. In the first mentioned case, the elementary principle is stated at page 282 of the report thus:"Apart from statute, it is elementary that if a party appeals, he is the party who comes before the Appellate Tribunal to redress a grievance alleged by him. If the other side has any grievance, he has a right to file as. But, if no such thing is done, the other party, in law, is deemed to be satisfied with the decision. He is, of course, entitled to support the judgment of the first officer on any ground open to him, but he is not entitled to raise a ground so as to work adversely to the appellant and in hisregards the decision of the Orissa High Court in CST v. Chunilal Parameswar Lal [1961] 12 STC 677 , the same cannot avail the appellant, for the decision in that case was rendered on a concession made by the assessees counsel. | 0 | 2,303 | 795 | ### Instruction:
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Commissioner has been preferred under sub-section (1) by the other party, may, notwithstanding that he has not appealed against such order or any part thereof, file, within thirty days of the receipt of the notice, a memorandum of cross-objections, verified in the prescribed manner against any part of the Appellate Assistant Commissioner, and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (1)(3) The appeal or the memorandum of cross-objections shall be in the prescribed form and shall be verified in the prescribed manner, and, in the case of an appeal preferred by any person other than an officer empowered by the Government under sub-section (1), it shall be accompanied by such fee not exceeding one hundred rupees as may be prescribed(4) In disposing of an appeal, the Appellate Tribunal may, after giving the parties a reasonable opportunity of being heard either in person or by a representative, --(a) in the case of an order of assessment or penalty--(i) confirm, reduce, enhance or annul the assessment or penalty or both;(ii) set aside the assessment and direct the assessing authority to make a fresh assesment after such further enquiry as may be directed; or(iii) pass such other orders as it may think fit; or(b) in the case of any other order, confirm, cancel or vary such order."Considerable emphasis was laid by counsel for the appellant upon sub-s. (4) which indicates what things the Appellate Tribunal may do while disposing of an appeal and in particular it was pointed out that under sub-s. (4)(a)(i) the Appellate Tribunal has been given power "to enhance the assessment" while disposing of an appeal against an order of assessment after giving the party a reasonable opportunity of being heard and it was urged that such power could be exercised even when the appeal against the AACs assessment order had been preferred by the assessee and not by the department. To place such a construction on sub-s. (4)(a)(i) would amount to ignoring the scheme of s. 39. Sub-s. (1) provides for an appeal being preferred against an assessment order passed by the AAC under s. 34(3) either by the assessee or by the department through an officer empowered by the Government in that behalf. Further, sub-s. (2) provides for filing of cross-objections by a party, against whom an appeal has been preferred, notwithstanding that he has not himself appealed against the decision or any part thereof and such cross-objections are to be disposed of by the Appellate Tribunal as if it were an appeal. Then comes sub-s. (4) which enumerates the various powers conferred upon the Appellate Tribunal while disposing of such appeals (including cross-objections) and the power conferred upon the Appellate Tribunal under sub-s. (4)(a)(i) is "to confirm, reduce, enhance or annul the assessment"; the power to enhance the assessment must be appropriately read as relatable to an appeal or cross-objections filed by the department. The normal rule that a party not appealing from a decision must be deemed to be satisfied with the decision, must be taken to have acquiesced therein and be bound by it, and, therefore, cannot seek relief against a rival party in an appeal preferred by the latter, has not been deviated from in sub-s. (4)(a)(i) above. In other words, in the absence of an appeal or cross-objections by the department against the AACs order the Appellate Tribunal will have no jurisdiction or power to enhance the assessment. Further, to accept the construction placed by the counsel for the appellant on sub-s. (4)(a)(i) would be really rendering sub-s. (2) of s. 39 otiose, for if in an appeal preferred by the assessee against the AACs order, the Tribunal would have the power to enhance the assessment, a provision for cross-objections by the department was really unnecessary. Having regard to the entire scheme of s. 39, therefore, it is clear that on a true and proper construction of sub-s. (4)(a)(i) of s. 39 the Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal or cross-objections by the departmentIt is true that the two Bombay decisions reported in [1945] 13 ITR 272 and [1957] 31 ITR 844 , on which the High Court has relied, have been rendered in relation to s. 33(4) of the Indian I.T. Act, 1922, but, in our view, the said provision of I.T. Act is in pari materia with the provision of s. 39(4) of the Kerala General Sales Tax Act, 1963. Moreover, the Bombay High Court has pointed out in those decisions that s. 33(4) merely enacted what was the elementary principle to be found in the Civil Procedure Code that the respondent who has neither preferred his own appeal nor filed cross-objections in the appeal preferred by the appellant, must be deemed to be satisfied with the decision of the lower authority and he will not be entitled to seek relief against a rival party in an appeal preferred by the latter. In the first mentioned case, the elementary principle is stated at page 282 of the report thus:"Apart from statute, it is elementary that if a party appeals, he is the party who comes before the Appellate Tribunal to redress a grievance alleged by him. If the other side has any grievance, he has a right to file a cross-appeal or cross-objections. But, if no such thing is done, the other party, in law, is deemed to be satisfied with the decision. He is, of course, entitled to support the judgment of the first officer on any ground open to him, but he is not entitled to raise a ground so as to work adversely to the appellant and in his favour."3. As regards the decision of the Orissa High Court in CST v. Chunilal Parameswar Lal [1961] 12 STC 677 , the same cannot avail the appellant, for the decision in that case was rendered on a concession made by the assessees counsel.4.
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For the reasons which we shall presently indicate it is not possible to accept either of these contentions urged by counsel for theplace such a construction on(4)(a)(i) would amount to ignoring the scheme of s. 39.(1) provides for an appeal being preferred against an assessment order passed by the AAC under s. 34(3) either by the assessee or by the department through an officer empowered by the Government in that behalf. Further,(2) provides for filing ofby a party, against whom an appeal has been preferred, notwithstanding that he has not himself appealed against the decision or any part thereof and suchare to be disposed of by the Appellate Tribunal as if it were an appeal. Then comes(4) which enumerates the various powers conferred upon the Appellate Tribunal while disposing of such appeals (includingand the power conferred upon the Appellate Tribunal under(4)(a)(i) is "to confirm, reduce, enhance or annul the assessment"; the power to enhance the assessment must be appropriately read as relatable to an appeal orfiled by the department. The normal rule that a party not appealing from a decision must be deemed to be satisfied with the decision, must be taken to have acquiesced therein and be bound by it, and, therefore, cannot seek relief against a rival party in an appeal preferred by the latter, has not been deviated from in(4)(a)(i) above. In other words, in the absence of an appeal orby the department against the AACs order the Appellate Tribunal will have no jurisdiction or power to enhance the assessment. Further, to accept the construction placed by the counsel for the appellant on(4)(a)(i) would be really rendering(2) of s. 39 otiose, for if in an appeal preferred by the assessee against the AACs order, the Tribunal would have the power to enhance the assessment, a provision forby the department was really unnecessary. Having regard to the entire scheme of s. 39, therefore, it is clear that on a true and proper construction of(4)(a)(i) of s. 39 the Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal orby the departmentIt is true that the two Bombay decisions reported in [1945] 13 ITR 272 and [1957] 31 ITR 844 , on which the High Court has relied, have been rendered in relation to s. 33(4) of the Indian I.T. Act, 1922, but, in our view, the said provision of I.T. Act is in pari materia with the provision of s. 39(4) of the Kerala General Sales Tax Act, 1963. Moreover, the Bombay High Court has pointed out in those decisions that s. 33(4) merely enacted what was the elementary principle to be found in the Civil Procedure Code that the respondent who has neither preferred his own appeal nor filedin the appeal preferred by the appellant, must be deemed to be satisfied with the decision of the lower authority and he will not be entitled to seek relief against a rival party in an appeal preferred by the latter. In the first mentioned case, the elementary principle is stated at page 282 of the report thus:"Apart from statute, it is elementary that if a party appeals, he is the party who comes before the Appellate Tribunal to redress a grievance alleged by him. If the other side has any grievance, he has a right to file as. But, if no such thing is done, the other party, in law, is deemed to be satisfied with the decision. He is, of course, entitled to support the judgment of the first officer on any ground open to him, but he is not entitled to raise a ground so as to work adversely to the appellant and in hisregards the decision of the Orissa High Court in CST v. Chunilal Parameswar Lal [1961] 12 STC 677 , the same cannot avail the appellant, for the decision in that case was rendered on a concession made by the assessees counsel.
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Devi Prasad And Others Vs. Government Of Andhra Pradesh And Others | the same functions and it is wrong to say that there is no functional parity as between Supervisors and Junior Engineers. However, the academic superiority of the Junior Engineers is also a reality and has been recognised in the rules framed. The promotion to the next higher rank is to the post of Assistant Engineers in the State Engineering service and for the purpose of promotion to that rank, according to the rules, it was necessary for a degree holder like a Junior Engineer to put in five years of service while for a non-degree holder, that is a diploma holder like a Supervisor, a minimum service of ten years was prescribed. This caused considerable hardship to the Supervisor and, therefore, having a second look at the whole situation, government by G.O. Ms. No. 893 framed the following rule which may be read here :Note 2. - Supervisors who acquire, while in service, B.E., A.M.I.E. (India) qualification shall be entitled to count 50 per cent. of their service rendered as Supervisor prior to acquisition of such qualification, subject to a maximum limit of 4 years as if it had been in the post of Junior Engineers for the purpose of consideration for appointment by transfer to the post of Assistant Engineer from Junior Engineers and subject to the following conditions : (1) They should render a minimum service of one year after acquisition of B.E. or A.M.I.E. (India) qualification. (2) They should be considered to have been placed below the list of the Junior Engineers of the year after giving weightage as indicated above. (3) They should put in a total service of 5 years as Junior Engineer inclusive of the period given as weightage. (4) The benefit of weightage given above shall be given effect for the purpose of all selections that are made by Public Service Commission pertaining to the years from 2nd January, 1968 onwards till 28th February, 1972. 4. It is apparent from this new rule that nothing unreasonable or shocking, nothing arbitrary or violative of fair play is done because what has been prescribed is that if a Supervisor acquires A.M.I.E while in service and renders service as Supervisor be he is given credit a Junior Engineer for half the period of his service as Supervisor subject to a maximum of four years. It is common ground that A.M.I.E is equal to an engineering degree. Thus virtually the Supervisor acquires an engineering degree and discharges functions which are substantially similar to that of a Junior Engineer yet there is inequality of opportunity. The Government has tried to mitigate the hardship by framing this rule which accords to such new Junior Engineers or upgraded Supervisors the benefit of half the length of service as Supervisors. This weightage is challenged as arbitrary, unjust and therefore, violative of article 14. 5. It is contended by counsel for the Junior Engineers who are the appellants before us, relying on the decision we have earlier referred to namely, State of Gujarat, v. C. G. Desai ((1074) 2 SCR 255 : (1974) 1 SCC 188 : 1974 SCC (L&S) 116) that, if the date of upgrading is prior to the date of commencement of probation of the regular Junior Engineers, such upgraded Junior Engineers cannot be treated as seniors to the directly recruited Junior Engineers and promotions cannot be ordered on that footing. This grievance may be or may not be but it is impossible to hold that there is anything arbitrary or violative of Article 14. 6. After all, we must remember that Supervisors and Junior Engineers discharge substantially similar functions. We must further remember that Supervisors get the special weightage only if they acquire A.M.I.E. which is equivalent to an Engineering degree. Furthermore, the weightage given is only for half the period they have served as Supervisors. In the light of their wide experience and basic qualification, we are unable to say that there is anything capricious is giving them the limited benefit or weightage under the new rule. We, therefore, do not agree that there is any merit in the appeal. 7. Ultimately, it is a matter of government policy to decide what weightage should be given as between two categories of government servants rendering somewhat similar kind of service. In the present case, there may be truth in the case of the appellants that they are hard hit because of the new rule. Dr. Chitale tried to convince us of the hardship that his clients sustain consequent on this rule and weightage conferred thereby. But mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal. However, government must be interested in keeping its servants specially in strategic areas like engineering contented and efficient. In so producing contentment, it may have to evolve a flexible policy which will not strike a group as inflicting hardship on them. A sense of justice must permeate both the groups. Perhaps there is force in the submission of Dr. Chitale that the Junior Engineers have to face adversity in the matter of promotions. All that we can do is to emphasize that this being a matter of government policy, the State will receive any representation that may be made for change of policy from the Junior Engineers and consider whether any such change in the policy is justified in the circumstances of the case. In so doing, there is no doubt that the other affected groups will also be heard because administration fair play is basic to satisfaction of government servants as a class. We say no more nor do we indicate that in our view there is any hardship. We only mean to say that government will remove hardships if by modification of policy it can achieve this result. Undoubtedly, in this process, both sides will have to be heard not as a rule of law but as a part of administrative fair play. | 0[ds]4. It is apparent from this new rule that nothing unreasonable or shocking, nothing arbitrary or violative of fair play is done because what has been prescribed is that if a Supervisor acquires A.M.I.E while in service and renders service as Supervisor be he is given credit a Junior Engineer for half the period of his service as Supervisor subject to a maximum of four years. It is common ground that A.M.I.E is equal to an engineering degree. Thus virtually the Supervisor acquires an engineering degree and discharges functions which are substantially similar to that of a Junior Engineer yet there is inequality of opportunity. The Government has tried to mitigate the hardship by framing this rule which accords to such new Junior Engineers or upgraded Supervisors the benefit of half the length of service as Supervisors. This weightage is challenged as arbitrary, unjust and therefore, violative of article 14In the light of their wide experience and basic qualification, we are unable to say that there is anything capricious is giving them the limited benefit or weightage under the new rule. We, therefore, do not agree that there is any merit in the appeal7. Ultimately, it is a matter of government policy to decide what weightage should be given as between two categories of government servants rendering somewhat similar kind of service. In the present case, there may be truth in the case of the appellants that they are hard hit because of the new rule. Dr. Chitale tried to convince us of the hardship that his clients sustain consequent on this rule and weightage conferred thereby. But mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal. However, government must be interested in keeping its servants specially in strategic areas like engineering contented and efficient. In so producing contentment, it may have to evolve a flexible policy which will not strike a group as inflicting hardship on them. A sense of justice must permeate both the groups. Perhaps there is force in the submission of Dr. Chitale that the Junior Engineers have to face adversity in the matter of promotions. All that we can do is to emphasize that this being a matter of government policy, the State will receive any representation that may be made for change of policy from the Junior Engineers and consider whether any such change in the policy is justified in the circumstances of the case. In so doing, there is no doubt that the other affected groups will also be heard because administration fair play is basic to satisfaction of government servants as a class. We say no more nor do we indicate that in our view there is any hardship. We only mean to say that government will remove hardships if by modification of policy it can achieve this result. Undoubtedly, in this process, both sides will have to be heard not as a rule of law but as a part of administrative fair play. | 0 | 1,379 | 549 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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the same functions and it is wrong to say that there is no functional parity as between Supervisors and Junior Engineers. However, the academic superiority of the Junior Engineers is also a reality and has been recognised in the rules framed. The promotion to the next higher rank is to the post of Assistant Engineers in the State Engineering service and for the purpose of promotion to that rank, according to the rules, it was necessary for a degree holder like a Junior Engineer to put in five years of service while for a non-degree holder, that is a diploma holder like a Supervisor, a minimum service of ten years was prescribed. This caused considerable hardship to the Supervisor and, therefore, having a second look at the whole situation, government by G.O. Ms. No. 893 framed the following rule which may be read here :Note 2. - Supervisors who acquire, while in service, B.E., A.M.I.E. (India) qualification shall be entitled to count 50 per cent. of their service rendered as Supervisor prior to acquisition of such qualification, subject to a maximum limit of 4 years as if it had been in the post of Junior Engineers for the purpose of consideration for appointment by transfer to the post of Assistant Engineer from Junior Engineers and subject to the following conditions : (1) They should render a minimum service of one year after acquisition of B.E. or A.M.I.E. (India) qualification. (2) They should be considered to have been placed below the list of the Junior Engineers of the year after giving weightage as indicated above. (3) They should put in a total service of 5 years as Junior Engineer inclusive of the period given as weightage. (4) The benefit of weightage given above shall be given effect for the purpose of all selections that are made by Public Service Commission pertaining to the years from 2nd January, 1968 onwards till 28th February, 1972. 4. It is apparent from this new rule that nothing unreasonable or shocking, nothing arbitrary or violative of fair play is done because what has been prescribed is that if a Supervisor acquires A.M.I.E while in service and renders service as Supervisor be he is given credit a Junior Engineer for half the period of his service as Supervisor subject to a maximum of four years. It is common ground that A.M.I.E is equal to an engineering degree. Thus virtually the Supervisor acquires an engineering degree and discharges functions which are substantially similar to that of a Junior Engineer yet there is inequality of opportunity. The Government has tried to mitigate the hardship by framing this rule which accords to such new Junior Engineers or upgraded Supervisors the benefit of half the length of service as Supervisors. This weightage is challenged as arbitrary, unjust and therefore, violative of article 14. 5. It is contended by counsel for the Junior Engineers who are the appellants before us, relying on the decision we have earlier referred to namely, State of Gujarat, v. C. G. Desai ((1074) 2 SCR 255 : (1974) 1 SCC 188 : 1974 SCC (L&S) 116) that, if the date of upgrading is prior to the date of commencement of probation of the regular Junior Engineers, such upgraded Junior Engineers cannot be treated as seniors to the directly recruited Junior Engineers and promotions cannot be ordered on that footing. This grievance may be or may not be but it is impossible to hold that there is anything arbitrary or violative of Article 14. 6. After all, we must remember that Supervisors and Junior Engineers discharge substantially similar functions. We must further remember that Supervisors get the special weightage only if they acquire A.M.I.E. which is equivalent to an Engineering degree. Furthermore, the weightage given is only for half the period they have served as Supervisors. In the light of their wide experience and basic qualification, we are unable to say that there is anything capricious is giving them the limited benefit or weightage under the new rule. We, therefore, do not agree that there is any merit in the appeal. 7. Ultimately, it is a matter of government policy to decide what weightage should be given as between two categories of government servants rendering somewhat similar kind of service. In the present case, there may be truth in the case of the appellants that they are hard hit because of the new rule. Dr. Chitale tried to convince us of the hardship that his clients sustain consequent on this rule and weightage conferred thereby. But mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal. However, government must be interested in keeping its servants specially in strategic areas like engineering contented and efficient. In so producing contentment, it may have to evolve a flexible policy which will not strike a group as inflicting hardship on them. A sense of justice must permeate both the groups. Perhaps there is force in the submission of Dr. Chitale that the Junior Engineers have to face adversity in the matter of promotions. All that we can do is to emphasize that this being a matter of government policy, the State will receive any representation that may be made for change of policy from the Junior Engineers and consider whether any such change in the policy is justified in the circumstances of the case. In so doing, there is no doubt that the other affected groups will also be heard because administration fair play is basic to satisfaction of government servants as a class. We say no more nor do we indicate that in our view there is any hardship. We only mean to say that government will remove hardships if by modification of policy it can achieve this result. Undoubtedly, in this process, both sides will have to be heard not as a rule of law but as a part of administrative fair play.
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### Explanation:
4. It is apparent from this new rule that nothing unreasonable or shocking, nothing arbitrary or violative of fair play is done because what has been prescribed is that if a Supervisor acquires A.M.I.E while in service and renders service as Supervisor be he is given credit a Junior Engineer for half the period of his service as Supervisor subject to a maximum of four years. It is common ground that A.M.I.E is equal to an engineering degree. Thus virtually the Supervisor acquires an engineering degree and discharges functions which are substantially similar to that of a Junior Engineer yet there is inequality of opportunity. The Government has tried to mitigate the hardship by framing this rule which accords to such new Junior Engineers or upgraded Supervisors the benefit of half the length of service as Supervisors. This weightage is challenged as arbitrary, unjust and therefore, violative of article 14In the light of their wide experience and basic qualification, we are unable to say that there is anything capricious is giving them the limited benefit or weightage under the new rule. We, therefore, do not agree that there is any merit in the appeal7. Ultimately, it is a matter of government policy to decide what weightage should be given as between two categories of government servants rendering somewhat similar kind of service. In the present case, there may be truth in the case of the appellants that they are hard hit because of the new rule. Dr. Chitale tried to convince us of the hardship that his clients sustain consequent on this rule and weightage conferred thereby. But mere hardship without anything arbitrary in the rule does not call for judicial intervention, especially when it flows out of a policy which is not basically illegal. However, government must be interested in keeping its servants specially in strategic areas like engineering contented and efficient. In so producing contentment, it may have to evolve a flexible policy which will not strike a group as inflicting hardship on them. A sense of justice must permeate both the groups. Perhaps there is force in the submission of Dr. Chitale that the Junior Engineers have to face adversity in the matter of promotions. All that we can do is to emphasize that this being a matter of government policy, the State will receive any representation that may be made for change of policy from the Junior Engineers and consider whether any such change in the policy is justified in the circumstances of the case. In so doing, there is no doubt that the other affected groups will also be heard because administration fair play is basic to satisfaction of government servants as a class. We say no more nor do we indicate that in our view there is any hardship. We only mean to say that government will remove hardships if by modification of policy it can achieve this result. Undoubtedly, in this process, both sides will have to be heard not as a rule of law but as a part of administrative fair play.
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Workmen of M/s. Swadeshi Cotton Mills Company Limited Vs. M/s. Swadeshi Cotton Mills Company Limited | now.6. Before the Industrial Tribunal the workmen examined one witness S. K. Srivastava and the respondent examined one R. S. Pathak. Referring to the evidence of these two witnesses the Tribunal pointed out that "when the extra payment of 12 1/2 per cent was made to the weavers it was also given to the Line Jobbers, but the wages of the latter were first calculated by excluding 12 1/2 per cent increase on the wages of weavers and after calculating the earnings thus an addition of 12 1/2 per cent was made. This had to be done because obviously the benefit of 12 1/2 per cent increase could not be given to the Mistries twice. The wages of weavers were revised after rationalisation and every weaver who was previously paid the wage for two loom working began to be paid on the basis of three-loom working. However, the number of weavers was reduced to one-half and there was likelihood of the Mistries wages being reduced, as result of reduction in the number of weavers."In order, therefore, to compensate the Mistries, 12 1/2 per cent increase continued to be given to them which ultimately was superseded by the agreement arrived at in the Award Cases Nos. 57 and 88 of 1966, whereunder the wages of Mistries were increased from two annas per rupee to three annas or 18 paise per rupee. The agreement, however, did not specify that the addition of 12 1/2 per cent would continue to be given on the revised rate of wages to the Mistries. The workmen contend that since the Dear Food Allowance and Rs. 8/- are being paid, this 12 1/2 per cent which is also an allowance should also be paid to them. What has to be considered is what the Line Mistries were getting before the settlement and what they are getting after the settlement. A calculation on the hypothetical basis which has been given by the respondent, which to our mind seems to illustrate two different methods under which the Mistries were being paid actually, would show that the Line Mistries are getting more at the rate of 18 paise per rupee even without the addition of 12 1/2 per cent. It is obvious, therefore, that the agreement between the parties took this into account and the omission to mention 12 1/2 per cent is significant in that it was not intended that a further 12 1/2 per cent was to be added to their basic wages. The statement Ext. E-5 will show that the average increase in the total earnings of Line Jobbers for the month of December 1967 was Rs. 10.83. The Tribunal observed that "Not a single Mistri or Line Jobber has come forward to say that he has suffered in earnings by reason of introduction of the new formula of calculation." The learned Advocate for the appellant, however, stated that the workmens cause was espoused by the workers Union and that fact itself is sufficient to show that the Line Mistries had suffered in their earnings. We do not think that there is any substance in this contention, nor is there any warrant for the calculation given by him that before the four-loom system was introduced the Mistries were getting Rs. 204/- per month and after that they (were) getting less. The workmens witness admitted in Adjudication Case No. 57 of 1966 that the settlement was made after calculation of the basic earnings of a Line Jobber which means that the basic earnings of Line Jobbers were calculated and the new rate was fixed assuring that the Line Jobbers were not put to any loss. On this aspect the employers witness after supporting the calculations given above stated thus :"After the introduction of four-loom working the average wage of a weaver came to about Rs. 72/- to Rs. 80/-. After enforcement of Sampurnanand Award we calculated the wages of four-loom workers according to that award. The earnings of weavers remain more or less the same. Statement Ex. E-4 was prepared by me from the records of the Mill. It is correct and is signed by me. All these calculations were calculated by me. Ex. E-5 is an extract of this statement. It is also signed by me and is correct. The earnings of Line Jobbers have increased by calculation @ 18 paise per rupee. Now we pay wages to line Jobbers @ 18 paise per rupee of the wages of weavers without making addition or subtraction either way in the total of weavers wages. By weavers wages, I mean the wages paid to them according to the Sampurnanand Award. The wage board increase still stands separately. The 12 1/2 % increase has already been accounted for in weavers wages. Both the weavers as well as Mistries are getting wage Board increase of (Rs.) 8/- p. m."Again at another place the witness stated:"By increase in the number of looms I mean increase in the number of looms in the mill taken as a whole. Number of looms has been increasing from 40 to 50 and from 50 to 60 in a line. The number of weavers went on increasing with the number of weavers in a line. With the increase of number of weavers in a line, the wages of Line Jobber increased automatically. With the introduction of the system of four-loom working the number of weavers decreased. With the introduction of the new rate of 18 paise per rupee of the wages of weavers, the wage of a line Jobber increased by about Rs. 10/- p.m. The underlying object of all the formulas apply to the wages of line jobbers was that their wages should not decrease."This latter statement was made in cross-examination and at any rate the statements made by the employers witness were not seriously challenged. In cross-examination and we do not see any ground for interfering with the conclusion arrived at by the Industrial Tribunal which is amply borne out by the materials on record. | 0[ds]5. It will be seen from the above extract that the 12 1/2 per cent interim increase which was recommended for almost all the industries in the United Provinces was based on thebasic wages and this suggestion was accepted by all the parties. In the case of piece rated workers like weavers, as there were large number of piece rates for different qualities of textile production for convenience of calculation, the increase of 12 1/2 per cent was added up separately for several years to arrive at the basic earnings to which were added Dear Food Allowance etc.on the earnings of the Mistries the 12 1/2 per cent was separately added and that became their basic earnings. Apart from the basic earnings payable to the employees they were also paid Dear Food Allowance and Rs.It submitted by the respondent that the wages of the Mistries were, however, worked out and their rates were applied on the total basic earnings of the weavers excluding the said 12 1/2 per cent increase, so as not to give double increase to the Mistries. In July 1952, in the piece rates payable to the weavers the said increase of 12 1/2 per cent in each of the said rates was merged with the result that the payment to the weavers on the production included the aforesaid 12 1/2 per cent increase which was therefore not required to be separately calculated. With regard to the Mistries, however, in order to exactly calculate their basic earnings, it became necessary first to arrive at the basic earnings of the weavers by excluding the said 12 1/2 per cent element which had been merged in their rates, and from the figure arrived at which represented the 1947 basic wages of the weavers the earnings of the Mistries were calculated at their rates and to the amount so arrived, 121/2 per cent was added which became the basic earnings of thecalculations of these two systems would facilitate a better understanding and in Annexure A of the Statement of the Case of the respondent, the two systems were illustrated by methods IV, V and VI which are as follows:"IV. Calculation with effect fromwhen instead of variable rates between10 per rupee payable to Mistries was increased. toV. Method followed to calculate the basic earning of Mistries after switch over to 4 loom system of working(a) On the same hypothesis the basic earnings of all weavers in a particular84.37, because weavers were paid on 3/4th of their production on 4 looms. Therefore to arrive at what would have been their wages if paid on 2 loom working so that the Mistries rate be applied correctly.is, therefore, contended by the respondent that in fact the Line Mistries are getting more than they were getting before when they were paid/2/of the basic earnings of the weavers plus 12 1/2 per cent. This is exclusive of the Dear Food Allowance and Rs. 8/which are being paid even now.Before the Industrial Tribunal the workmen examined one witness S. K. Srivastava and the respondent examined one R. S. Pathak. Referring to the evidence of these two witnesses the Tribunal pointed out that "when the extra payment of 12 1/2 per cent was made to the weavers it was also given to the Line Jobbers, but the wages of the latter were first calculated by excluding 12 1/2 per cent increase on the wages of weavers and after calculating the earnings thus an addition of 12 1/2 per cent was made. This had to be done because obviously the benefit of 12 1/2 per cent increase could not be given to the Mistries twice. The wages of weavers were revised after rationalisation and every weaver who was previously paid the wage for two loom working began to be paid on the basis ofworking. However, the number of weavers was reduced toand there was likelihood of the Mistries wages being reduced, as result of reduction in the number of weavers."In order, therefore, to compensate the Mistries, 12 1/2 per cent increase continued to be given to them which ultimately was superseded by the agreement arrived at in the Award Cases Nos. 57 and 88 of 1966, whereunder the wages of Mistries were increased from two annas per rupee to three annas or 18 paise per rupee. The agreement, however, did not specify that the addition of 12 1/2 per cent would continue to be given on the revised rate of wages to the Mistries. The workmen contend that since the Dear Food Allowance and Rs. 8/are being paid, this 12 1/2 per cent which is also an allowance should also be paid to them. What has to be considered is what the Line Mistries were getting before the settlement and what they are getting after the settlement. A calculation on the hypothetical basis which has been given by the respondent, which to our mind seems to illustrate two different methods under which the Mistries were being paid actually, would show that the Line Mistries are getting more at the rate of 18 paise per rupee even without the addition of 12 1/2 per cent. It is obvious, therefore, that the agreement between the parties took this into account and the omission to mention 12 1/2 per cent is significant in that it was not intended that a further 12 1/2 per cent was to be added to their basic wages. The statement Ext.will show that the average increase in the total earnings of Line Jobbers for the month of December 1967 was Rs. 10.83. The Tribunal observed that "Not a single Mistri or Line Jobber has come forward to say that he has suffered in earnings by reason of introduction of the new formula of calculation." The learned Advocate for the appellant, however, stated that the workmens cause was espoused by the workers Union and that fact itself is sufficient to show that the Line Mistries had suffered in their earnings. We do not think that there is any substance in this contention, nor is there any warrant for the calculation given by him that before thesystem was introduced the Mistries were getting Rs. 204/per month and after that they (were) getting less. The workmens witness admitted in Adjudication Case No. 57 of 1966 that the settlement was made after calculation of the basic earnings of a Line Jobber which means that the basic earnings of Line Jobbers were calculated and the new rate was fixed assuring that the Line Jobbers were not put to anylatter statement was made inand at any rate the statements made by the employers witness were not seriously challenged. Inand we do not see any ground for interfering with the conclusion arrived at by the Industrial Tribunal which is amply borne out by the materials on record. | 0 | 2,715 | 1,216 | ### 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:
now.6. Before the Industrial Tribunal the workmen examined one witness S. K. Srivastava and the respondent examined one R. S. Pathak. Referring to the evidence of these two witnesses the Tribunal pointed out that "when the extra payment of 12 1/2 per cent was made to the weavers it was also given to the Line Jobbers, but the wages of the latter were first calculated by excluding 12 1/2 per cent increase on the wages of weavers and after calculating the earnings thus an addition of 12 1/2 per cent was made. This had to be done because obviously the benefit of 12 1/2 per cent increase could not be given to the Mistries twice. The wages of weavers were revised after rationalisation and every weaver who was previously paid the wage for two loom working began to be paid on the basis of three-loom working. However, the number of weavers was reduced to one-half and there was likelihood of the Mistries wages being reduced, as result of reduction in the number of weavers."In order, therefore, to compensate the Mistries, 12 1/2 per cent increase continued to be given to them which ultimately was superseded by the agreement arrived at in the Award Cases Nos. 57 and 88 of 1966, whereunder the wages of Mistries were increased from two annas per rupee to three annas or 18 paise per rupee. The agreement, however, did not specify that the addition of 12 1/2 per cent would continue to be given on the revised rate of wages to the Mistries. The workmen contend that since the Dear Food Allowance and Rs. 8/- are being paid, this 12 1/2 per cent which is also an allowance should also be paid to them. What has to be considered is what the Line Mistries were getting before the settlement and what they are getting after the settlement. A calculation on the hypothetical basis which has been given by the respondent, which to our mind seems to illustrate two different methods under which the Mistries were being paid actually, would show that the Line Mistries are getting more at the rate of 18 paise per rupee even without the addition of 12 1/2 per cent. It is obvious, therefore, that the agreement between the parties took this into account and the omission to mention 12 1/2 per cent is significant in that it was not intended that a further 12 1/2 per cent was to be added to their basic wages. The statement Ext. E-5 will show that the average increase in the total earnings of Line Jobbers for the month of December 1967 was Rs. 10.83. The Tribunal observed that "Not a single Mistri or Line Jobber has come forward to say that he has suffered in earnings by reason of introduction of the new formula of calculation." The learned Advocate for the appellant, however, stated that the workmens cause was espoused by the workers Union and that fact itself is sufficient to show that the Line Mistries had suffered in their earnings. We do not think that there is any substance in this contention, nor is there any warrant for the calculation given by him that before the four-loom system was introduced the Mistries were getting Rs. 204/- per month and after that they (were) getting less. The workmens witness admitted in Adjudication Case No. 57 of 1966 that the settlement was made after calculation of the basic earnings of a Line Jobber which means that the basic earnings of Line Jobbers were calculated and the new rate was fixed assuring that the Line Jobbers were not put to any loss. On this aspect the employers witness after supporting the calculations given above stated thus :"After the introduction of four-loom working the average wage of a weaver came to about Rs. 72/- to Rs. 80/-. After enforcement of Sampurnanand Award we calculated the wages of four-loom workers according to that award. The earnings of weavers remain more or less the same. Statement Ex. E-4 was prepared by me from the records of the Mill. It is correct and is signed by me. All these calculations were calculated by me. Ex. E-5 is an extract of this statement. It is also signed by me and is correct. The earnings of Line Jobbers have increased by calculation @ 18 paise per rupee. Now we pay wages to line Jobbers @ 18 paise per rupee of the wages of weavers without making addition or subtraction either way in the total of weavers wages. By weavers wages, I mean the wages paid to them according to the Sampurnanand Award. The wage board increase still stands separately. The 12 1/2 % increase has already been accounted for in weavers wages. Both the weavers as well as Mistries are getting wage Board increase of (Rs.) 8/- p. m."Again at another place the witness stated:"By increase in the number of looms I mean increase in the number of looms in the mill taken as a whole. Number of looms has been increasing from 40 to 50 and from 50 to 60 in a line. The number of weavers went on increasing with the number of weavers in a line. With the increase of number of weavers in a line, the wages of Line Jobber increased automatically. With the introduction of the system of four-loom working the number of weavers decreased. With the introduction of the new rate of 18 paise per rupee of the wages of weavers, the wage of a line Jobber increased by about Rs. 10/- p.m. The underlying object of all the formulas apply to the wages of line jobbers was that their wages should not decrease."This latter statement was made in cross-examination and at any rate the statements made by the employers witness were not seriously challenged. In cross-examination and we do not see any ground for interfering with the conclusion arrived at by the Industrial Tribunal which is amply borne out by the materials on record.
### Response:
0
### Explanation:
and Rs.It submitted by the respondent that the wages of the Mistries were, however, worked out and their rates were applied on the total basic earnings of the weavers excluding the said 12 1/2 per cent increase, so as not to give double increase to the Mistries. In July 1952, in the piece rates payable to the weavers the said increase of 12 1/2 per cent in each of the said rates was merged with the result that the payment to the weavers on the production included the aforesaid 12 1/2 per cent increase which was therefore not required to be separately calculated. With regard to the Mistries, however, in order to exactly calculate their basic earnings, it became necessary first to arrive at the basic earnings of the weavers by excluding the said 12 1/2 per cent element which had been merged in their rates, and from the figure arrived at which represented the 1947 basic wages of the weavers the earnings of the Mistries were calculated at their rates and to the amount so arrived, 121/2 per cent was added which became the basic earnings of thecalculations of these two systems would facilitate a better understanding and in Annexure A of the Statement of the Case of the respondent, the two systems were illustrated by methods IV, V and VI which are as follows:"IV. Calculation with effect fromwhen instead of variable rates between10 per rupee payable to Mistries was increased. toV. Method followed to calculate the basic earning of Mistries after switch over to 4 loom system of working(a) On the same hypothesis the basic earnings of all weavers in a particular84.37, because weavers were paid on 3/4th of their production on 4 looms. Therefore to arrive at what would have been their wages if paid on 2 loom working so that the Mistries rate be applied correctly.is, therefore, contended by the respondent that in fact the Line Mistries are getting more than they were getting before when they were paid/2/of the basic earnings of the weavers plus 12 1/2 per cent. This is exclusive of the Dear Food Allowance and Rs. 8/which are being paid even now.Before the Industrial Tribunal the workmen examined one witness S. K. Srivastava and the respondent examined one R. S. Pathak. Referring to the evidence of these two witnesses the Tribunal pointed out that "when the extra payment of 12 1/2 per cent was made to the weavers it was also given to the Line Jobbers, but the wages of the latter were first calculated by excluding 12 1/2 per cent increase on the wages of weavers and after calculating the earnings thus an addition of 12 1/2 per cent was made. This had to be done because obviously the benefit of 12 1/2 per cent increase could not be given to the Mistries twice. The wages of weavers were revised after rationalisation and every weaver who was previously paid the wage for two loom working began to be paid on the basis ofworking. However, the number of weavers was reduced toand there was likelihood of the Mistries wages being reduced, as result of reduction in the number of weavers."In order, therefore, to compensate the Mistries, 12 1/2 per cent increase continued to be given to them which ultimately was superseded by the agreement arrived at in the Award Cases Nos. 57 and 88 of 1966, whereunder the wages of Mistries were increased from two annas per rupee to three annas or 18 paise per rupee. The agreement, however, did not specify that the addition of 12 1/2 per cent would continue to be given on the revised rate of wages to the Mistries. The workmen contend that since the Dear Food Allowance and Rs. 8/are being paid, this 12 1/2 per cent which is also an allowance should also be paid to them. What has to be considered is what the Line Mistries were getting before the settlement and what they are getting after the settlement. A calculation on the hypothetical basis which has been given by the respondent, which to our mind seems to illustrate two different methods under which the Mistries were being paid actually, would show that the Line Mistries are getting more at the rate of 18 paise per rupee even without the addition of 12 1/2 per cent. It is obvious, therefore, that the agreement between the parties took this into account and the omission to mention 12 1/2 per cent is significant in that it was not intended that a further 12 1/2 per cent was to be added to their basic wages. The statement Ext.will show that the average increase in the total earnings of Line Jobbers for the month of December 1967 was Rs. 10.83. The Tribunal observed that "Not a single Mistri or Line Jobber has come forward to say that he has suffered in earnings by reason of introduction of the new formula of calculation." The learned Advocate for the appellant, however, stated that the workmens cause was espoused by the workers Union and that fact itself is sufficient to show that the Line Mistries had suffered in their earnings. We do not think that there is any substance in this contention, nor is there any warrant for the calculation given by him that before thesystem was introduced the Mistries were getting Rs. 204/per month and after that they (were) getting less. The workmens witness admitted in Adjudication Case No. 57 of 1966 that the settlement was made after calculation of the basic earnings of a Line Jobber which means that the basic earnings of Line Jobbers were calculated and the new rate was fixed assuring that the Line Jobbers were not put to anylatter statement was made inand at any rate the statements made by the employers witness were not seriously challenged. Inand we do not see any ground for interfering with the conclusion arrived at by the Industrial Tribunal which is amply borne out by the materials on record.
|
Srinivas & Company Vs. Inden Biselers by their Partners | December, 1950 the respondent wrote to the appellant (Ex. B-12) appointing the appellant as the sole distributor in Madras for the sale and distribution of schluter diesel engines of German origin for a period of 2 years commencing January, 1951. The letter of appointment mentioned that it was on the express understanding that the appellant would maintain an after-sales service for servicing the schluter engines and do all the sales campaign necessary to make schluter engines very familiar in the territory covered by the appointment.11. The respondent obtained on 6 April, 1951 licence for import of diesel engines from soft currency area. On 6 April, 1951 the respondent obtained another licence for import of diesel engines from Japan. On 21 April, 1951 the respondent obtained another licence for import of diesel engines from dollar and soft currency areas. Each licence was valid for 12 months from the date of issue. The value of the licence for import from Japan was Rs. 12,345 and the other two licences were of the value of Rs. 3624 and Rs. 13768 respectively.12. On 17 May, 1951 the respondent obtained a licence for import of diesel engines from dollar and soft currency areas for a period commencing 21 April, 1951 to 31 December, 1951 and the value of the import was without any limit.13. The appellant alleged an agreement whereby the respondent appointed the appellant distributor of all diesel oil engines imported by the respondent. The letter dated 26 December, 1950 totally nullifies the appellants case. The appellant was appointed the sole distributor of schluter oil engines for a period of two years. The High Court rightly noticed the distinction between the appointment of the appellant as the sole distributor for two years and the distribution and sale of diesel oil engines by the appellant prior to the said appointment. The trial court fell into the error of considering the letter Ex. B-12 as a mere surplusage. The High Court correctly cleared that confusion caused by the trial court The entire correspondence also indicates that the respondent wrote to the Government that the appellant maintained an after sales servicing organisation in respect of diesel oil engines imported by the respondent and sold through the appellant. The appellant was not in a position to be in the list of approved importers because the appellant was neither an established importer nor the sole representative of a foreign manufacturer of diesel oil engines. The respondent on the other hand, filled both the capacities and sent to the Government the special contract of agency between the respondent and the German manufacturers of schluter oil engines appointing the respondent as the sole agent for import and sale of schluter oil engines in South India., The appellant was not granted a certificate at the beginning because the appellant was not an importer. The appellant procured the orders for sale and all such orders had to be executed through the import of diesel oil engines by the respondent. That is how the appellant and the respondent dealt with each other prior to the appointment of the appellant as the sole distributor by the respondent in the month of December, 1950. The appellant after refusal of grant of certificate again approached the Government and in no uncertain terms stated that the respondent was the importer and the certificate was therefore required by the respondent.14. The documents established beyond any measure of doubt that the appellant was appointed the sole distributor of schluter on engines for a period of two years. In case of disputed oral version it is safer to rely on documents. That is more so in the case of contemporaneous documents considered in the light of rival contention.. If the appointment of the appellant as distributor of schluter engines had not been the correct state of affairs between the parties the appellant would have been the first to cavil at the appointment of sole distributor for schluter oil engines for two years. The significant silence of the appellant in that behalf strengthens the respondents case. It is equally noticeable that the appellant throughout the years when the respondent sold other oil engines in the area never raised any objection or preferred any claim.15. The correspondence between the parties in the month of November, 1950 and the appointment of the appellant as the sole distributor of schluter engines in the month of December, 1950 was at the time when the respondent was applying for only schluter oil engines. The blanket licence that was obtained by the respondent in the month of May, 1951 was pursuant to a new import policy. The respondent by letter dated 30 April 1951 (Ex B-24) applied to the Deputy Chief Controller of Imports for the issue of a blanket licence in accordance with I.T. C. notification No. 81 (P/N) 51. That refers to the import trade control notification of the year 1951. The notification is Exhibit B-23. It is manifest that the blanket licence was not in the contemplation of parties in the months of November and December, 1950. It was a new policy of the Government. The respondent of its own applied for the blanket licence. The appellant had no concern with it.16. The alternative case of the appellant under section 70 of the Contract Act was that the appellant surrendered the certificate and the respondent obtained the benefits thereof and therefore the respondent was liable to compensate the appellant. The appellant was appointed the sole distributor for two years in respect of schluter oil engines. The certificate which the appellant surrendered to the respondent resulted in the appointment of the appellant as the sole distributor for schluter engines. The issue of blanket licence by the Government to the respondent was because of change in import trade policy. The respondent of its own applied for the blanket licence. The grant of the blanket licence was not any act done by the appellant. The respondent did not receive the blanket licence as a benefit from the appellant. | 1[ds]13. The appellant alleged an agreement whereby the respondent appointed the appellant distributor of all diesel oil engines imported by the respondent. The letter dated 26 December, 1950 totally nullifies the appellants case. The appellant was appointed the sole distributor of schluter oil engines for a period of two years. The High Court rightly noticed the distinction between the appointment of the appellant as the sole distributor for two years and the distribution and sale of diesel oil engines by the appellant prior to the said appointment. The trial court fell into the error of considering the letter Ex.as a mere surplusage. The High Court correctly cleared that confusion caused by the trial court The entire correspondence also indicates that the respondent wrote to the Government that the appellant maintained an after sales servicing organisation in respect of diesel oil engines imported by the respondent and sold through the appellant. The appellant was not in a position to be in the list of approved importers because the appellant was neither an established importer nor the sole representative of a foreign manufacturer of diesel oil engines. The respondent on the other hand, filled both the capacities and sent to the Government the special contract of agency between the respondent and the German manufacturers of schluter oil engines appointing the respondent as the sole agent for import and sale of schluter oil engines in South India., The appellant was not granted a certificate at the beginning because the appellant was not an importer. The appellant procured the orders for sale and all such orders had to be executed through the import of diesel oil engines by the respondent. That is how the appellant and the respondent dealt with each other prior to the appointment of the appellant as the sole distributor by the respondent in the month of December, 1950. The appellant after refusal of grant of certificate again approached the Government and in no uncertain terms stated that the respondent was the importer and the certificate was therefore required by the respondent.14. The documents established beyond any measure of doubt that the appellant was appointed the sole distributor of schluter on engines for a period of two years. In case of disputed oral version it is safer to rely on documents. That is more so in the case of contemporaneous documents considered in the light of rival contention.. If the appointment of the appellant as distributor of schluter engines had not been the correct state of affairs between the parties the appellant would have been the first to cavil at the appointment of sole distributor for schluter oil engines for two years. The significant silence of the appellant in that behalf strengthens the respondents case. It is equally noticeable that the appellant throughout the years when the respondent sold other oil engines in the area never raised any objection or preferred any claim.15. The correspondence between the parties in the month of November, 1950 and the appointment of the appellant as the sole distributor of schluter engines in the month of December, 1950 was at the time when the respondent was applying for only schluter oil engines. The blanket licence that was obtained by the respondent in the month of May, 1951 was pursuant to a new import policy. The respondent by letter dated 30 April 1951 (Exapplied to the Deputy Chief Controller of Imports for the issue of a blanket licence in accordance with I.T. C. notification No. 81 (P/N) 51. That refers to the import trade control notification of the year 1951. The notification is ExhibitIt is manifest that the blanket licence was not in the contemplation of parties in the months of November and December, 1950. It was a new policy of the Government. The respondent of its own applied for the blanket licence. The appellant had no concern with it.16. The alternative case of the appellant under section 70 of the Contract Act was that the appellant surrendered the certificate and the respondent obtained the benefits thereof and therefore the respondent was liable to compensate the appellant. The appellant was appointed the sole distributor for two years in respect of schluter oil engines. The certificate which the appellant surrendered to the respondent resulted in the appointment of the appellant as the sole distributor for schluter engines. The issue of blanket licence by the Government to the respondent was because of change in import trade policy. The respondent of its own applied for the blanket licence. The grant of the blanket licence was not any act done by the appellant. The respondent did not receive the blanket licence as a benefit from the appellant. | 1 | 2,647 | 826 | ### 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:
December, 1950 the respondent wrote to the appellant (Ex. B-12) appointing the appellant as the sole distributor in Madras for the sale and distribution of schluter diesel engines of German origin for a period of 2 years commencing January, 1951. The letter of appointment mentioned that it was on the express understanding that the appellant would maintain an after-sales service for servicing the schluter engines and do all the sales campaign necessary to make schluter engines very familiar in the territory covered by the appointment.11. The respondent obtained on 6 April, 1951 licence for import of diesel engines from soft currency area. On 6 April, 1951 the respondent obtained another licence for import of diesel engines from Japan. On 21 April, 1951 the respondent obtained another licence for import of diesel engines from dollar and soft currency areas. Each licence was valid for 12 months from the date of issue. The value of the licence for import from Japan was Rs. 12,345 and the other two licences were of the value of Rs. 3624 and Rs. 13768 respectively.12. On 17 May, 1951 the respondent obtained a licence for import of diesel engines from dollar and soft currency areas for a period commencing 21 April, 1951 to 31 December, 1951 and the value of the import was without any limit.13. The appellant alleged an agreement whereby the respondent appointed the appellant distributor of all diesel oil engines imported by the respondent. The letter dated 26 December, 1950 totally nullifies the appellants case. The appellant was appointed the sole distributor of schluter oil engines for a period of two years. The High Court rightly noticed the distinction between the appointment of the appellant as the sole distributor for two years and the distribution and sale of diesel oil engines by the appellant prior to the said appointment. The trial court fell into the error of considering the letter Ex. B-12 as a mere surplusage. The High Court correctly cleared that confusion caused by the trial court The entire correspondence also indicates that the respondent wrote to the Government that the appellant maintained an after sales servicing organisation in respect of diesel oil engines imported by the respondent and sold through the appellant. The appellant was not in a position to be in the list of approved importers because the appellant was neither an established importer nor the sole representative of a foreign manufacturer of diesel oil engines. The respondent on the other hand, filled both the capacities and sent to the Government the special contract of agency between the respondent and the German manufacturers of schluter oil engines appointing the respondent as the sole agent for import and sale of schluter oil engines in South India., The appellant was not granted a certificate at the beginning because the appellant was not an importer. The appellant procured the orders for sale and all such orders had to be executed through the import of diesel oil engines by the respondent. That is how the appellant and the respondent dealt with each other prior to the appointment of the appellant as the sole distributor by the respondent in the month of December, 1950. The appellant after refusal of grant of certificate again approached the Government and in no uncertain terms stated that the respondent was the importer and the certificate was therefore required by the respondent.14. The documents established beyond any measure of doubt that the appellant was appointed the sole distributor of schluter on engines for a period of two years. In case of disputed oral version it is safer to rely on documents. That is more so in the case of contemporaneous documents considered in the light of rival contention.. If the appointment of the appellant as distributor of schluter engines had not been the correct state of affairs between the parties the appellant would have been the first to cavil at the appointment of sole distributor for schluter oil engines for two years. The significant silence of the appellant in that behalf strengthens the respondents case. It is equally noticeable that the appellant throughout the years when the respondent sold other oil engines in the area never raised any objection or preferred any claim.15. The correspondence between the parties in the month of November, 1950 and the appointment of the appellant as the sole distributor of schluter engines in the month of December, 1950 was at the time when the respondent was applying for only schluter oil engines. The blanket licence that was obtained by the respondent in the month of May, 1951 was pursuant to a new import policy. The respondent by letter dated 30 April 1951 (Ex B-24) applied to the Deputy Chief Controller of Imports for the issue of a blanket licence in accordance with I.T. C. notification No. 81 (P/N) 51. That refers to the import trade control notification of the year 1951. The notification is Exhibit B-23. It is manifest that the blanket licence was not in the contemplation of parties in the months of November and December, 1950. It was a new policy of the Government. The respondent of its own applied for the blanket licence. The appellant had no concern with it.16. The alternative case of the appellant under section 70 of the Contract Act was that the appellant surrendered the certificate and the respondent obtained the benefits thereof and therefore the respondent was liable to compensate the appellant. The appellant was appointed the sole distributor for two years in respect of schluter oil engines. The certificate which the appellant surrendered to the respondent resulted in the appointment of the appellant as the sole distributor for schluter engines. The issue of blanket licence by the Government to the respondent was because of change in import trade policy. The respondent of its own applied for the blanket licence. The grant of the blanket licence was not any act done by the appellant. The respondent did not receive the blanket licence as a benefit from the appellant.
### Response:
1
### Explanation:
13. The appellant alleged an agreement whereby the respondent appointed the appellant distributor of all diesel oil engines imported by the respondent. The letter dated 26 December, 1950 totally nullifies the appellants case. The appellant was appointed the sole distributor of schluter oil engines for a period of two years. The High Court rightly noticed the distinction between the appointment of the appellant as the sole distributor for two years and the distribution and sale of diesel oil engines by the appellant prior to the said appointment. The trial court fell into the error of considering the letter Ex.as a mere surplusage. The High Court correctly cleared that confusion caused by the trial court The entire correspondence also indicates that the respondent wrote to the Government that the appellant maintained an after sales servicing organisation in respect of diesel oil engines imported by the respondent and sold through the appellant. The appellant was not in a position to be in the list of approved importers because the appellant was neither an established importer nor the sole representative of a foreign manufacturer of diesel oil engines. The respondent on the other hand, filled both the capacities and sent to the Government the special contract of agency between the respondent and the German manufacturers of schluter oil engines appointing the respondent as the sole agent for import and sale of schluter oil engines in South India., The appellant was not granted a certificate at the beginning because the appellant was not an importer. The appellant procured the orders for sale and all such orders had to be executed through the import of diesel oil engines by the respondent. That is how the appellant and the respondent dealt with each other prior to the appointment of the appellant as the sole distributor by the respondent in the month of December, 1950. The appellant after refusal of grant of certificate again approached the Government and in no uncertain terms stated that the respondent was the importer and the certificate was therefore required by the respondent.14. The documents established beyond any measure of doubt that the appellant was appointed the sole distributor of schluter on engines for a period of two years. In case of disputed oral version it is safer to rely on documents. That is more so in the case of contemporaneous documents considered in the light of rival contention.. If the appointment of the appellant as distributor of schluter engines had not been the correct state of affairs between the parties the appellant would have been the first to cavil at the appointment of sole distributor for schluter oil engines for two years. The significant silence of the appellant in that behalf strengthens the respondents case. It is equally noticeable that the appellant throughout the years when the respondent sold other oil engines in the area never raised any objection or preferred any claim.15. The correspondence between the parties in the month of November, 1950 and the appointment of the appellant as the sole distributor of schluter engines in the month of December, 1950 was at the time when the respondent was applying for only schluter oil engines. The blanket licence that was obtained by the respondent in the month of May, 1951 was pursuant to a new import policy. The respondent by letter dated 30 April 1951 (Exapplied to the Deputy Chief Controller of Imports for the issue of a blanket licence in accordance with I.T. C. notification No. 81 (P/N) 51. That refers to the import trade control notification of the year 1951. The notification is ExhibitIt is manifest that the blanket licence was not in the contemplation of parties in the months of November and December, 1950. It was a new policy of the Government. The respondent of its own applied for the blanket licence. The appellant had no concern with it.16. The alternative case of the appellant under section 70 of the Contract Act was that the appellant surrendered the certificate and the respondent obtained the benefits thereof and therefore the respondent was liable to compensate the appellant. The appellant was appointed the sole distributor for two years in respect of schluter oil engines. The certificate which the appellant surrendered to the respondent resulted in the appointment of the appellant as the sole distributor for schluter engines. The issue of blanket licence by the Government to the respondent was because of change in import trade policy. The respondent of its own applied for the blanket licence. The grant of the blanket licence was not any act done by the appellant. The respondent did not receive the blanket licence as a benefit from the appellant.
|
KANOORI Vs. STATE OF RAJASTHAN | 1980 in favour of the appellant-the wife of the deceased Gumana Ram Jaat came to be reversed on an appeal filed by the State and the appellant came to be convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The case of the prosecution was that the appellant got married to the deceased five years before the date of occurrence in question, that the Gauna had taken place one and half years before the date of occurrence, that she was not happy with her husband he having not been in a position to make her lead a luxurious life, the husband was a rustic villager, that on the night intervening 2nd/3rd June, 1980 when her husband was sleeping in Awade in order to keep a watch on the cattle, she went stealthily and killed her husband by a sharp edged weapon known as Jharbar, that the mother-in-law of the appellant was awake and had noticed the going of the appellant to the Awade and returning therefrom and that even when she returned and gave the mother-in-law water to drink at her asking without giving room for any suspicion and thereafter everybody slept as though nothing happened, ultimately to find on the next morning the victim in a pool of blood in the Awade. Thereafter on cries raised the other family members and neighbours gathered on the spot and noticed the gruesome murder. The prosecution further alleged that the appellant herself confessed of having killed her husband. On information being lodged by PW 3 Amana Ram, the uncle of the deceased at 4.30 PM on 3.6.1980 the case was said to have been registered under Section 302 Indian Penal Code and in the course of investigation witnesses were said to have been examined and on all the relevant materials gathered besides getting the post mortem of the body also conducted. The appellant has been charged as noticed supra for the offence under Section 302 Indian Penal Code for having murdered her husband. 3. On being committed to the sessions court and after conduct of trial the learned Sessions Judge considered the materials on record with particular reference to the circumstances allegedly pointing towards the guilt of the appellant and recorded a finding that the prosecution was not able to substantiate involvement of the appellant in the occurrence or prove that she was the culprit who committed the murder. Aggrieved, the State pursued the matter before the High Court and as pointed out earlier, the High Court felt convinced of the prosecution case and convicted the appellant for the murder of her husband, resulting in the above appeal. 4. The learned counsel for the appellant as also the learned counsel for the respondent-State endeavoured much, during the course of arguments, apart from inviting our attention to the relevant portions of the judgments of the courts below and the evidence on record, to justify their respective stands relying upon one or the other of the findings of the courts below. 5. On a careful consideration of the contentions of the learned counsel on either side we are of the view that the High Court, though was entitled to re-appreciate the evidence on record as the court of first appeal, has in our view, completely overlooked the fact that it was dealing with an appeal against the order of an acquittal and instead of finding out the infirmities if any in the judgment of the learned Sessions Judge which could legitimately justify interference with the order of acquittal rendered by the trial court seems to have proceeded on mere surmises in assuming the basic requirements and ingredients necessary to prove the guilt which otherwise need proper proof on the basis of concrete materials, while disturbing the findings of the learned Sessions Judge. In our view, the findings recorded by the learned Sessions Judge are well merited and the nebulous nature of evidence let-in in support of the prosecution case was rightly considered to be insufficient for the purpose of indicting the appellant merely on the ground that she was found during night to have gone to the Awade where her husband was sleeping and returned, in our view, apart from the slippery and doubtful nature of the evidence in this regard it would be too far fetched an assumption to be made, particularly, when there is no concrete material worth credence to prove any such strained feelings and further it has not been shown that the Awade was inaccessible to anyone else other than the inmates of the house being located in open field to suppose that she alone was the culprit. There was nothing for the wife living in the company of in-laws going during night time to the place where her husband was sleeping to have his company and this cannot by itself be viewed as enough proof of her guilt, merely because the victim was found to have met with an unnatural death. The evidence of PW 4 seems to be too artificial to inspire any confidence with a court of law when she claims to have not noticed any strange behaviour with the appellant on her return from Awade or any blood in her hands or clothes, which could have been found on her clothes so visibly, even as per the version of the prosecution. That apart as observed by the trial court so many injuries could not have been inflicted without any noise or cries being made by the victim. The entire prosecution story appears to be too artificial to be accepted in law, to justify a conviction for murder. Neither the claim based on the alleged confession nor the recovery of the weapon of the crime in the manner projected could inspire any confidence in court to expect to judicially adjudicate the guilt of an accused and the order of reversal made by the High Court, in our view, seems to be patently erroneous, demonstrably unreasonable and consequently unsustainable. | 1[ds]5. On a careful consideration of the contentions of the learned counsel on either side we are of the view that the High Court, though was entitled to re-appreciate the evidence on record as the court of first appeal, has in our view, completely overlooked the fact that it was dealing with an appeal against the order of an acquittal and instead of finding out the infirmities if any in the judgment of the learned Sessions Judge which could legitimately justify interference with the order of acquittal rendered by the trial court seems to have proceeded on mere surmises in assuming the basic requirements and ingredients necessary to prove the guilt which otherwise need proper proof on the basis of concrete materials, while disturbing the findings of the learned Sessions Judge. In our view, the findings recorded by the learned Sessions Judge are well merited and the nebulous nature of evidence let-in in support of the prosecution case was rightly considered to be insufficient for the purpose of indicting the appellant merely on the ground that she was found during night to have gone to the Awade where her husband was sleeping and returned, in our view, apart from the slippery and doubtful nature of the evidence in this regard it would be too far fetched an assumption to be made, particularly, when there is no concrete material worth credence to prove any such strained feelings and further it has not been shown that the Awade was inaccessible to anyone else other than the inmates of the house being located in open field to suppose that she alone was the culprit. There was nothing for the wife living in the company of in-laws going during night time to the place where her husband was sleeping to have his company and this cannot by itself be viewed as enough proof of her guilt, merely because the victim was found to have met with an unnatural death. The evidence of PW 4 seems to be too artificial to inspire any confidence with a court of law when she claims to have not noticed any strange behaviour with the appellant on her return from Awade or any blood in her hands or clothes, which could have been found on her clothes so visibly, even as per the version of the prosecution. That apart as observed by the trial court so many injuries could not have been inflicted without any noise or cries being made by the victim. The entire prosecution story appears to be too artificial to be accepted in law, to justify a conviction for murder. Neither the claim based on the alleged confession nor the recovery of the weapon of the crime in the manner projected could inspire any confidence in court to expect to judicially adjudicate the guilt of an accused and the order of reversal made by the High Court, in our view, seems to be patently erroneous, demonstrably unreasonable and consequently unsustainable. | 1 | 1,104 | 523 | ### 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:
1980 in favour of the appellant-the wife of the deceased Gumana Ram Jaat came to be reversed on an appeal filed by the State and the appellant came to be convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The case of the prosecution was that the appellant got married to the deceased five years before the date of occurrence in question, that the Gauna had taken place one and half years before the date of occurrence, that she was not happy with her husband he having not been in a position to make her lead a luxurious life, the husband was a rustic villager, that on the night intervening 2nd/3rd June, 1980 when her husband was sleeping in Awade in order to keep a watch on the cattle, she went stealthily and killed her husband by a sharp edged weapon known as Jharbar, that the mother-in-law of the appellant was awake and had noticed the going of the appellant to the Awade and returning therefrom and that even when she returned and gave the mother-in-law water to drink at her asking without giving room for any suspicion and thereafter everybody slept as though nothing happened, ultimately to find on the next morning the victim in a pool of blood in the Awade. Thereafter on cries raised the other family members and neighbours gathered on the spot and noticed the gruesome murder. The prosecution further alleged that the appellant herself confessed of having killed her husband. On information being lodged by PW 3 Amana Ram, the uncle of the deceased at 4.30 PM on 3.6.1980 the case was said to have been registered under Section 302 Indian Penal Code and in the course of investigation witnesses were said to have been examined and on all the relevant materials gathered besides getting the post mortem of the body also conducted. The appellant has been charged as noticed supra for the offence under Section 302 Indian Penal Code for having murdered her husband. 3. On being committed to the sessions court and after conduct of trial the learned Sessions Judge considered the materials on record with particular reference to the circumstances allegedly pointing towards the guilt of the appellant and recorded a finding that the prosecution was not able to substantiate involvement of the appellant in the occurrence or prove that she was the culprit who committed the murder. Aggrieved, the State pursued the matter before the High Court and as pointed out earlier, the High Court felt convinced of the prosecution case and convicted the appellant for the murder of her husband, resulting in the above appeal. 4. The learned counsel for the appellant as also the learned counsel for the respondent-State endeavoured much, during the course of arguments, apart from inviting our attention to the relevant portions of the judgments of the courts below and the evidence on record, to justify their respective stands relying upon one or the other of the findings of the courts below. 5. On a careful consideration of the contentions of the learned counsel on either side we are of the view that the High Court, though was entitled to re-appreciate the evidence on record as the court of first appeal, has in our view, completely overlooked the fact that it was dealing with an appeal against the order of an acquittal and instead of finding out the infirmities if any in the judgment of the learned Sessions Judge which could legitimately justify interference with the order of acquittal rendered by the trial court seems to have proceeded on mere surmises in assuming the basic requirements and ingredients necessary to prove the guilt which otherwise need proper proof on the basis of concrete materials, while disturbing the findings of the learned Sessions Judge. In our view, the findings recorded by the learned Sessions Judge are well merited and the nebulous nature of evidence let-in in support of the prosecution case was rightly considered to be insufficient for the purpose of indicting the appellant merely on the ground that she was found during night to have gone to the Awade where her husband was sleeping and returned, in our view, apart from the slippery and doubtful nature of the evidence in this regard it would be too far fetched an assumption to be made, particularly, when there is no concrete material worth credence to prove any such strained feelings and further it has not been shown that the Awade was inaccessible to anyone else other than the inmates of the house being located in open field to suppose that she alone was the culprit. There was nothing for the wife living in the company of in-laws going during night time to the place where her husband was sleeping to have his company and this cannot by itself be viewed as enough proof of her guilt, merely because the victim was found to have met with an unnatural death. The evidence of PW 4 seems to be too artificial to inspire any confidence with a court of law when she claims to have not noticed any strange behaviour with the appellant on her return from Awade or any blood in her hands or clothes, which could have been found on her clothes so visibly, even as per the version of the prosecution. That apart as observed by the trial court so many injuries could not have been inflicted without any noise or cries being made by the victim. The entire prosecution story appears to be too artificial to be accepted in law, to justify a conviction for murder. Neither the claim based on the alleged confession nor the recovery of the weapon of the crime in the manner projected could inspire any confidence in court to expect to judicially adjudicate the guilt of an accused and the order of reversal made by the High Court, in our view, seems to be patently erroneous, demonstrably unreasonable and consequently unsustainable.
### Response:
1
### Explanation:
5. On a careful consideration of the contentions of the learned counsel on either side we are of the view that the High Court, though was entitled to re-appreciate the evidence on record as the court of first appeal, has in our view, completely overlooked the fact that it was dealing with an appeal against the order of an acquittal and instead of finding out the infirmities if any in the judgment of the learned Sessions Judge which could legitimately justify interference with the order of acquittal rendered by the trial court seems to have proceeded on mere surmises in assuming the basic requirements and ingredients necessary to prove the guilt which otherwise need proper proof on the basis of concrete materials, while disturbing the findings of the learned Sessions Judge. In our view, the findings recorded by the learned Sessions Judge are well merited and the nebulous nature of evidence let-in in support of the prosecution case was rightly considered to be insufficient for the purpose of indicting the appellant merely on the ground that she was found during night to have gone to the Awade where her husband was sleeping and returned, in our view, apart from the slippery and doubtful nature of the evidence in this regard it would be too far fetched an assumption to be made, particularly, when there is no concrete material worth credence to prove any such strained feelings and further it has not been shown that the Awade was inaccessible to anyone else other than the inmates of the house being located in open field to suppose that she alone was the culprit. There was nothing for the wife living in the company of in-laws going during night time to the place where her husband was sleeping to have his company and this cannot by itself be viewed as enough proof of her guilt, merely because the victim was found to have met with an unnatural death. The evidence of PW 4 seems to be too artificial to inspire any confidence with a court of law when she claims to have not noticed any strange behaviour with the appellant on her return from Awade or any blood in her hands or clothes, which could have been found on her clothes so visibly, even as per the version of the prosecution. That apart as observed by the trial court so many injuries could not have been inflicted without any noise or cries being made by the victim. The entire prosecution story appears to be too artificial to be accepted in law, to justify a conviction for murder. Neither the claim based on the alleged confession nor the recovery of the weapon of the crime in the manner projected could inspire any confidence in court to expect to judicially adjudicate the guilt of an accused and the order of reversal made by the High Court, in our view, seems to be patently erroneous, demonstrably unreasonable and consequently unsustainable.
|
Shabi Construction Company Vs. City And Industrial Development Corporation And Anr | the Rules made thereunder to carry out the purpose of the Act and without prejudice to the generality of the power, lays down the specific fields in which it can make regulations 8. That brings us to the relevant provisions of the Regulations. Regulations 3.11 defines FSI to mean the ratio of the gross floor are of all the storeys of a building on a plot to the total area of the plot. Regulations 16 enumerates the various terms and conditions which are govern development of buildings for the various land use and Regulation 16.3.1(a) thereof prescribes the maximum permissible FSI 9. From the facts of the instant case as recorded earlier it is evident that when Respondent 1 issued the public notice in August 1985 inviting offers for lease of the plot in question, the maximum permissible FSI for divers land uses according to the final development plan was 1 and the minor modification proposed by it in respect thereof was awaiting sanction of the State Government. It is also evident, that before execution of the agreement by the appellant and Respondent 1, the State Government had issued the impugned notification in accordance with Section 37(2) of the Act sanctioning increase in the FSI to 1.50 and not to 2 as proposed by Respondent 1. The prior sanction of the State Government being the sine qua non for a final development plan as also for minor modifications thereof under Section 31 and 37 respectively, the agreement so far as it related to FSI did not, and could not, bestow any legal right upon the appellant. To put it conversely, only on such sanction could the inchoate right under the agreement crystallize into a legally enforceable right in favour of the appellant10. Building his argument on the doctrine of estoppel, the learned counsel for the appellant submitted that the prescription of FSI was not a statutory prescription but an administrative decision required to be taken by Respondent 1 from plan to plan under the provisions of Section 22(m) of the Act. He argued that since in the instant case Respondent 1, as the Planning Authority, took a decision to increase the FSI to 2 for business use of land and entered into a contract with the appellant on the basis thereof with open eyes it was estopped from repudiating the contract under Section 115 of the Evidence Act as also the general equitable doctrine of estoppel. He next contended that Regulation 16 of the Regulations made under Section 159 of the Act providing for FSI was ultra vires because the matters which could be brought within the ambit of the Regulations were serialised in the enabling section. According to the learned counsel when FSI has been specifically mentioned to be made a part of each development plan under Section 22(m) the fixation of FSI cannot be brought within the ambit of regulation-making power of the Development Authority and it had to be provided for by their executive orders to be determined in their discretion. The learned counsel contended that Respondent 1 could not resile from their contractual obligations by taking shelter behind a regulation which was ultra vires. He lastly contended that, assuming but without admitting, that FSI could fall within the ambit of regulation made under Section 159 of the Act, the fixation thereof was not a statutory prescription but the expression of an in-house policy declaration, which if deviated from by the holder of the Authority could not be used as a shield to retract from their contractual obligations. It was at best, according to the learned counsel, a violation of a rule and the proposition that there cannot be any estoppel against statute did not extend thereto11. Having regard to the scheme of the Act as reflected in the various provisions of the Act and the Regulations referred to earlier we are unable to accept the above contentions. Amongst various matters required to be included in a development plan under Section 22 of the Act, a provision for permission to be granted for controlling and regulating the use and development of land including imposition of conditions and restrictions in regard to the open space to be maintained about buildings and percentage of building are for a plot is required to be made under clause (m) thereof. To conform to the words "percentage of building are for a plot" appearing in that clause the FSI has been defined in the Regulations and maximum permissible limit fixed. Undoubtedly, to start with, fixation of FSI is an in-house exercise of Respondent 1, but it gets its legal sanctity only when the State Government grants its approval thereto under Section 159 of the Act. After the FSI is so fixed to comply with the requirement of Section 22(m), it becomes a part and parcel of the development plan which is to be submitted by the Planning Authority to the State Government under Section 21. Once the State Government grants approval to the development plan it becomes the final development plan and binds the Planning Authority under Section 31(6) of the Act. Therefore, any breach or violation of any of the terms or contents of the final development plan or modification in respect thereof without prior sanction of the State Government would amount to a breach of Sections 31 and 37, as the case may be, of the Act. That necessarily means, that in the instant case the increase in the FSI to 2 without obtaining approval of the State Government, is not only a breach of Regulation 159 but also of Sections 31(6) and 37(2) of the Act. In that view of the matter and in view of the well-settled law that the doctrine of promissory estoppel cannot be invoked to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power, none of the contentions raised on behalf of the appellant can be entertained | 0[ds]9. From the facts of the instant case as recorded earlier it is evident that when Respondent 1 issued the public notice in August 1985 inviting offers for lease of the plot in question, the maximum permissible FSI for divers land uses according to the final development plan was 1 and the minor modification proposed by it in respect thereof was awaiting sanction of the State Government. It is also evident, that before execution of the agreement by the appellant and Respondent 1, the State Government had issued the impugned notification in accordance with Section 37(2) of the Act sanctioning increase in the FSI to 1.50 and not to 2 as proposed by Respondent 1. The prior sanction of the State Government being the sine qua non for a final development plan as also for minor modifications thereof under Section 31 and 37 respectively, the agreement so far as it related to FSI did not, and could not, bestow any legal right upon the appellant. To put it conversely, only on such sanction could the inchoate right under the agreement crystallize into a legally enforceable right in favour of the appellant10. Building his argument on the doctrine of estoppel, the learned counsel for the appellant submitted that the prescription of FSI was not a statutory prescription but an administrative decision required to be taken by Respondent 1 from plan to plan under the provisions of Section 22(m) of the Act. He argued that since in the instant case Respondent 1, as the Planning Authority, took a decision to increase the FSI to 2 for business use of land and entered into a contract with the appellant on the basis thereof with open eyes it was estopped from repudiating the contract under Section 115 of the Evidence Act as also the general equitable doctrine of estoppel. He next contended that Regulation 16 of the Regulations made under Section 159 of the Act providing for FSI was ultra vires because the matters which could be brought within the ambit of the Regulations were serialised in the enabling section. According to the learned counsel when FSI has been specifically mentioned to be made a part of each development plan under Section 22(m) the fixation of FSI cannot be brought within the ambit ofpower of the Development Authority and it had to be provided for by their executive orders to be determined in their discretion. The learned counsel contended that Respondent 1 could not resile from their contractual obligations by taking shelter behind a regulation which was ultra vires. He lastly contended that, assuming but without admitting, that FSI could fall within the ambit of regulation made under Section 159 of the Act, the fixation thereof was not a statutory prescription but the expression of anpolicy declaration, which if deviated from by the holder of the Authority could not be used as a shield to retract from their contractual obligations. It was at best, according to the learned counsel, a violation of a rule and the proposition that there cannot be any estoppel against statute did not extend thereto11. Having regard to the scheme of the Act as reflected in the various provisions of the Act and the Regulations referred to earlier we are unable to accept the above contentions. Amongst various matters required to be included in a development plan under Section 22 of the Act, a provision for permission to be granted for controlling and regulating the use and development of land including imposition of conditions and restrictions in regard to the open space to be maintained about buildings and percentage of building are for a plot is required to be made under clause (m) thereof. To conform to the words "percentage of building are for a plot" appearing in that clause the FSI has been defined in the Regulations and maximum permissible limit fixed. Undoubtedly, to start with, fixation of FSI is anexercise of Respondent 1, but it gets its legal sanctity only when the State Government grants its approval thereto under Section 159 of the Act. After the FSI is so fixed to comply with the requirement of Section 22(m), it becomes a part and parcel of the development plan which is to be submitted by the Planning Authority to the State Government under Section 21. Once the State Government grants approval to the development plan it becomes the final development plan and binds the Planning Authority under Section 31(6) of the Act. Therefore, any breach or violation of any of the terms or contents of the final development plan or modification in respect thereof without prior sanction of the State Government would amount to a breach of Sections 31 and 37, as the case may be, of the Act. That necessarily means, that in the instant case the increase in the FSI to 2 without obtaining approval of the State Government, is not only a breach of Regulation 159 but also of Sections 31(6) and 37(2) of the Act. In that view of the matter and in view of thelaw that the doctrine of promissory estoppel cannot be invoked to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power, none of the contentions raised on behalf of the appellant can be entertained | 0 | 2,967 | 970 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the Rules made thereunder to carry out the purpose of the Act and without prejudice to the generality of the power, lays down the specific fields in which it can make regulations 8. That brings us to the relevant provisions of the Regulations. Regulations 3.11 defines FSI to mean the ratio of the gross floor are of all the storeys of a building on a plot to the total area of the plot. Regulations 16 enumerates the various terms and conditions which are govern development of buildings for the various land use and Regulation 16.3.1(a) thereof prescribes the maximum permissible FSI 9. From the facts of the instant case as recorded earlier it is evident that when Respondent 1 issued the public notice in August 1985 inviting offers for lease of the plot in question, the maximum permissible FSI for divers land uses according to the final development plan was 1 and the minor modification proposed by it in respect thereof was awaiting sanction of the State Government. It is also evident, that before execution of the agreement by the appellant and Respondent 1, the State Government had issued the impugned notification in accordance with Section 37(2) of the Act sanctioning increase in the FSI to 1.50 and not to 2 as proposed by Respondent 1. The prior sanction of the State Government being the sine qua non for a final development plan as also for minor modifications thereof under Section 31 and 37 respectively, the agreement so far as it related to FSI did not, and could not, bestow any legal right upon the appellant. To put it conversely, only on such sanction could the inchoate right under the agreement crystallize into a legally enforceable right in favour of the appellant10. Building his argument on the doctrine of estoppel, the learned counsel for the appellant submitted that the prescription of FSI was not a statutory prescription but an administrative decision required to be taken by Respondent 1 from plan to plan under the provisions of Section 22(m) of the Act. He argued that since in the instant case Respondent 1, as the Planning Authority, took a decision to increase the FSI to 2 for business use of land and entered into a contract with the appellant on the basis thereof with open eyes it was estopped from repudiating the contract under Section 115 of the Evidence Act as also the general equitable doctrine of estoppel. He next contended that Regulation 16 of the Regulations made under Section 159 of the Act providing for FSI was ultra vires because the matters which could be brought within the ambit of the Regulations were serialised in the enabling section. According to the learned counsel when FSI has been specifically mentioned to be made a part of each development plan under Section 22(m) the fixation of FSI cannot be brought within the ambit of regulation-making power of the Development Authority and it had to be provided for by their executive orders to be determined in their discretion. The learned counsel contended that Respondent 1 could not resile from their contractual obligations by taking shelter behind a regulation which was ultra vires. He lastly contended that, assuming but without admitting, that FSI could fall within the ambit of regulation made under Section 159 of the Act, the fixation thereof was not a statutory prescription but the expression of an in-house policy declaration, which if deviated from by the holder of the Authority could not be used as a shield to retract from their contractual obligations. It was at best, according to the learned counsel, a violation of a rule and the proposition that there cannot be any estoppel against statute did not extend thereto11. Having regard to the scheme of the Act as reflected in the various provisions of the Act and the Regulations referred to earlier we are unable to accept the above contentions. Amongst various matters required to be included in a development plan under Section 22 of the Act, a provision for permission to be granted for controlling and regulating the use and development of land including imposition of conditions and restrictions in regard to the open space to be maintained about buildings and percentage of building are for a plot is required to be made under clause (m) thereof. To conform to the words "percentage of building are for a plot" appearing in that clause the FSI has been defined in the Regulations and maximum permissible limit fixed. Undoubtedly, to start with, fixation of FSI is an in-house exercise of Respondent 1, but it gets its legal sanctity only when the State Government grants its approval thereto under Section 159 of the Act. After the FSI is so fixed to comply with the requirement of Section 22(m), it becomes a part and parcel of the development plan which is to be submitted by the Planning Authority to the State Government under Section 21. Once the State Government grants approval to the development plan it becomes the final development plan and binds the Planning Authority under Section 31(6) of the Act. Therefore, any breach or violation of any of the terms or contents of the final development plan or modification in respect thereof without prior sanction of the State Government would amount to a breach of Sections 31 and 37, as the case may be, of the Act. That necessarily means, that in the instant case the increase in the FSI to 2 without obtaining approval of the State Government, is not only a breach of Regulation 159 but also of Sections 31(6) and 37(2) of the Act. In that view of the matter and in view of the well-settled law that the doctrine of promissory estoppel cannot be invoked to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power, none of the contentions raised on behalf of the appellant can be entertained
### Response:
0
### Explanation:
9. From the facts of the instant case as recorded earlier it is evident that when Respondent 1 issued the public notice in August 1985 inviting offers for lease of the plot in question, the maximum permissible FSI for divers land uses according to the final development plan was 1 and the minor modification proposed by it in respect thereof was awaiting sanction of the State Government. It is also evident, that before execution of the agreement by the appellant and Respondent 1, the State Government had issued the impugned notification in accordance with Section 37(2) of the Act sanctioning increase in the FSI to 1.50 and not to 2 as proposed by Respondent 1. The prior sanction of the State Government being the sine qua non for a final development plan as also for minor modifications thereof under Section 31 and 37 respectively, the agreement so far as it related to FSI did not, and could not, bestow any legal right upon the appellant. To put it conversely, only on such sanction could the inchoate right under the agreement crystallize into a legally enforceable right in favour of the appellant10. Building his argument on the doctrine of estoppel, the learned counsel for the appellant submitted that the prescription of FSI was not a statutory prescription but an administrative decision required to be taken by Respondent 1 from plan to plan under the provisions of Section 22(m) of the Act. He argued that since in the instant case Respondent 1, as the Planning Authority, took a decision to increase the FSI to 2 for business use of land and entered into a contract with the appellant on the basis thereof with open eyes it was estopped from repudiating the contract under Section 115 of the Evidence Act as also the general equitable doctrine of estoppel. He next contended that Regulation 16 of the Regulations made under Section 159 of the Act providing for FSI was ultra vires because the matters which could be brought within the ambit of the Regulations were serialised in the enabling section. According to the learned counsel when FSI has been specifically mentioned to be made a part of each development plan under Section 22(m) the fixation of FSI cannot be brought within the ambit ofpower of the Development Authority and it had to be provided for by their executive orders to be determined in their discretion. The learned counsel contended that Respondent 1 could not resile from their contractual obligations by taking shelter behind a regulation which was ultra vires. He lastly contended that, assuming but without admitting, that FSI could fall within the ambit of regulation made under Section 159 of the Act, the fixation thereof was not a statutory prescription but the expression of anpolicy declaration, which if deviated from by the holder of the Authority could not be used as a shield to retract from their contractual obligations. It was at best, according to the learned counsel, a violation of a rule and the proposition that there cannot be any estoppel against statute did not extend thereto11. Having regard to the scheme of the Act as reflected in the various provisions of the Act and the Regulations referred to earlier we are unable to accept the above contentions. Amongst various matters required to be included in a development plan under Section 22 of the Act, a provision for permission to be granted for controlling and regulating the use and development of land including imposition of conditions and restrictions in regard to the open space to be maintained about buildings and percentage of building are for a plot is required to be made under clause (m) thereof. To conform to the words "percentage of building are for a plot" appearing in that clause the FSI has been defined in the Regulations and maximum permissible limit fixed. Undoubtedly, to start with, fixation of FSI is anexercise of Respondent 1, but it gets its legal sanctity only when the State Government grants its approval thereto under Section 159 of the Act. After the FSI is so fixed to comply with the requirement of Section 22(m), it becomes a part and parcel of the development plan which is to be submitted by the Planning Authority to the State Government under Section 21. Once the State Government grants approval to the development plan it becomes the final development plan and binds the Planning Authority under Section 31(6) of the Act. Therefore, any breach or violation of any of the terms or contents of the final development plan or modification in respect thereof without prior sanction of the State Government would amount to a breach of Sections 31 and 37, as the case may be, of the Act. That necessarily means, that in the instant case the increase in the FSI to 2 without obtaining approval of the State Government, is not only a breach of Regulation 159 but also of Sections 31(6) and 37(2) of the Act. In that view of the matter and in view of thelaw that the doctrine of promissory estoppel cannot be invoked to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power, none of the contentions raised on behalf of the appellant can be entertained
|
Budhan Singh & Anr Vs. Nabi Bux & Anr | relating to title or possession before making the settlement contemplated by Section 9 and therefore the Legislature cut the Gordian Knot by conferring title on the person who was in possession of the building. We see no merit in this argument. The settlement contemplated by Section 9 is a deemed settlement. That settlement took place immediately the vesting took place. No inquiry was contemplated before that settlement. If there is any dispute as to who is the settlee, the same has to be decided by the Civil Courts. The State is not concerned with the same. Section 9 merely settles the building on the persons who was holding it on the date of vesting.11. It is true that according to the dictionary meaning the word "held" can mean either a lawful holding or even a holding without any semblance of a right such as holding by a trespasser.But the real question is as to what is the legislative intent? Did the Legislature intend to settle the concerned building with a persons who was lawfully holding or with any persons holding lawfully or otherwise? Mr. Misra contended that there is no justification for us to read into the section the word "lawfully" before the word "held". According to him, if the Legislature intended that the holding should be a lawful one, it would have said "lawfully held". He wanted us to interpret the section as its stands.12. It is true that the Legislature could have used the word "lawfully held" in place of the word "held" in Section 9 but as mentioned earlier, one of the dictionary meanings given to the word "held" is "lawfully held".In Websters New Twentieth Century Dictionary (2nd Edn.), it is stated that in legal parlance the word "held" means to possess by "legal title".In other words, the word "held" is technically understood to mean to possess by legal title. Therefore, by interpreting the word "held" as "lawfully held", we are not adding any word to the section.We are merely spelling out the meaning of that word. It may further be seen that the section speaks of all buildings...within the limits of an estate, belonging to or held by an intermediary or tenant or other persons.....The word "belonging" undoubtedly refers to legal title. The words "held by an intermediary" also refer to a possession by legal title. The words "held by tenant" also refer to holding by legal title. In the sequence mentioned above, it is proper to construe the word "held" in Section 9 when used in relation to the words "other person" as meaning "lawfully held" by that person. That interpretation flows from the context in which the word "held" has been used. We have earlier mentioned that the said interpretation accords with justice.13. The expression "held" has been used in the Act in various other sections-see Sections 2 (1) (c), 13, 17, 18, 21, 144, 204, 240-A, 298, 304 and 314 to connote possession by legal title. Mr. Misra, learned counsel for the appellants, does not deny that the expression "held" in those sections means held lawfully. But according to him that is because of the context in which the word is used. Mr. Misra is right in saying so but he overlooks the context in which that expression is used in Section 9. We have already made reference to that context. He failed to point out to us any section in the Act, leaving aside Section 9 for the time being where the word "held" has been used as meaning mere holding, lawful or otherwise. In K. K. Handique v. Member, Board of Agricultural Income-tax, Assam, AIR 1966 SC 1191 , this Court was called upon to consider the meaning of the word "holds" in Sections 12 and 13 of the Assam Agricultural Income-tax Act. Subba Rao J.(as he then was), speaking for the Court, observed that the expression "holds" includes a twofold idea of the actual possession of a thing and also of being invested with a legal title though sometimes it is used only to mean actual possession. After reading Sections 12 and 13 together, he observed that the word "holds" in these sections mean holding by legal title. In Eramma v. Verupana, (1966) 2 SCR 626 = (AIR 1966 SC 1879 ), this Court considered the meaning of the word "possessed" in Section 14 (1) of the Hindu Succession Act which laid down that "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner". It held that the property possessed by a female widow, as contemplated in the section, is clearly a property to which she has acquired some kind of title whether before or after the commencement of the Act. It is true that in arriving at that conclusion the Court took into consideration the language of the provision as a whole and also the explanation to the section. The scheme of the Act is to abolish all estates and vest the concerned property in the State but at the same time certain rights were conferred on persons in possession of lands or building. It is reasonable to think that the persons who were within the contemplation of the Act are those who were in possession of lands or buildings on the basis of some legal title. Bearing in mind the purpose with which the legislation was enacted, the scheme of the Act and the language used in Section 9, we are of opinion that the word "held" in Section 9 means lawfully held. In other words, we accept the correctness of the view taken by Mukerji and Dwivedi JJ. For the reasons already mentioned, we are unable to agree with Desai, C. J. that the fact that the appellants had demolished the buildings put up by the respondents and put up some other building in their place had conferred any rights on them under Section 9. | 0[ds]We have no material before us from which we can find out the value of the buildings demolished by them and the value of the buildings put up by them unlawfully. From the description of the buildings given in evidence, it appears that the newly put up building is only cattle-shed. We are not satisfied that the newly put up building is worth more than the buildings that had been demolished by the appellants. In the circumstances of the case all that can be said is that the old buildings have been substituted by the new building. Therefore, the owners of the old buildings continue to be the owners of the new building. In that view of the matter it is not necessary to consider whether if a stranger builds a building on the land of another, the true owner of the land is entitled to recover the land with the building on it. Equitable considerations persuade us to hold that when the respondents came back to their village in 1949, they were entitled to recover not only the site but also the buildings constructed on it by the appellants. Hence, it should be held that on the date of vesting, the respondents were the owners of the building in question. In law they were holding thesee no merit in this argument.The settlement contemplated by Section 9 is a deemed settlement. That settlement took place immediately the vesting took place. No inquiry was contemplated before that settlement. If there is any dispute as to who is the settlee, the same has to be decided by the Civil Courts. The State is not concerned with the same. Section 9 merely settles the building on the persons who was holding it on the date of vesting.The expression "held" has been used in the Act in various other sections-see Sections 2 (1) (c), 13, 17, 18, 21, 144, 204, 240-A, 298, 304 and 314 to connote possession by legal title. Mr. Misra, learned counsel for the appellants, does not deny that the expression "held" in those sections means held lawfully. But according to him that is because of the context in which the word is used. Mr. Misra is right in saying so but he overlooks the context in which that expression is used in Section 9. We have already made reference to that context. He failed to point out to us any section in the Act, leaving aside Section 9 for the time being where the word "held" has been used as meaning mere holding, lawful or otherwise. In K. K. Handique v. Member, Board of Agricultural Income-tax, Assam, AIR 1966 SC 1191 , this Court was called upon to consider the meaning of the word "holds" in Sections 12 and 13 of the Assam Agricultural Income-tax Act. Subba Rao J.(as he then was), speaking for the Court, observed that the expression "holds" includes a twofold idea of the actual possession of a thing and also of being invested with a legal title though sometimes it is used only to mean actual possession. After reading Sections 12 and 13 together, he observed that the word "holds" in these sections mean holding by legal title. In Eramma v. Verupana, (1966) 2 SCR 626 = (AIR 1966 SC 1879 ), this Court considered the meaning of the word "possessed" in Section 14 (1) of the Hindu Succession Act which laid down that "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner". It held that the property possessed by a female widow, as contemplated in the section, is clearly a property to which she has acquired some kind of title whether before or after the commencement of the Act. It is true that in arriving at that conclusion the Court took into consideration the language of the provision as a whole and also the explanation to the section. The scheme of the Act is to abolish all estates and vest the concerned property in the State but at the same time certain rights were conferred on persons in possession of lands or building. It is reasonable to think that the persons who were within the contemplation of the Act are those who were in possession of lands or buildings on the basis of some legal title. Bearing in mind the purpose with which the legislation was enacted, the scheme of the Act and the language used in Section 9, we are of opinion that the word "held" in Section 9 means lawfully held. In other words, we accept the correctness of the view taken by Mukerji and Dwivedi JJ. For the reasons already mentioned, we are unable to agree with Desai, C. J. that the fact that the appellants had demolished the buildings put up by the respondents and put up some other building in their place had conferred any rights on them under Sectionis unfortunate that the latter Division Bench should have thought it proper to sit in judgment over the correctness of a decision rendered by a Bench of coordinate jurisdiction.Judicial propriety requires that if a Bench of a High Court is unable to agree with the decision already rendered by anotherBench of the same High Court, the question should be referred to a larger Bench. Otherwise, the decisions of High Courts will not only lose respect in the eyes of the public, it will also make the task of the subordinate Courts difficult.We are unable to persuade ourselves to believe that the Legislature intended to ignore the rights of persons having legal title to possession and wanted to make a gift of any building to a trespasser howsoever recent the trespasser might have been if only he happened to be in physical possession of the building on the date of vesting. We are also unable to discernany legislative policy in support of thatsettlement contemplated by Section 9 is a deemed settlement. That settlement took place immediately the vesting took place. No inquiry was contemplated before that settlement. If there is any dispute as to who is the settlee, the same has to be decided by the Civil Courts. The State is not concerned with the same. Section 9 merely settles the building on the persons who was holding it on the date of vesting. | 0 | 3,509 | 1,178 | ### 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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relating to title or possession before making the settlement contemplated by Section 9 and therefore the Legislature cut the Gordian Knot by conferring title on the person who was in possession of the building. We see no merit in this argument. The settlement contemplated by Section 9 is a deemed settlement. That settlement took place immediately the vesting took place. No inquiry was contemplated before that settlement. If there is any dispute as to who is the settlee, the same has to be decided by the Civil Courts. The State is not concerned with the same. Section 9 merely settles the building on the persons who was holding it on the date of vesting.11. It is true that according to the dictionary meaning the word "held" can mean either a lawful holding or even a holding without any semblance of a right such as holding by a trespasser.But the real question is as to what is the legislative intent? Did the Legislature intend to settle the concerned building with a persons who was lawfully holding or with any persons holding lawfully or otherwise? Mr. Misra contended that there is no justification for us to read into the section the word "lawfully" before the word "held". According to him, if the Legislature intended that the holding should be a lawful one, it would have said "lawfully held". He wanted us to interpret the section as its stands.12. It is true that the Legislature could have used the word "lawfully held" in place of the word "held" in Section 9 but as mentioned earlier, one of the dictionary meanings given to the word "held" is "lawfully held".In Websters New Twentieth Century Dictionary (2nd Edn.), it is stated that in legal parlance the word "held" means to possess by "legal title".In other words, the word "held" is technically understood to mean to possess by legal title. Therefore, by interpreting the word "held" as "lawfully held", we are not adding any word to the section.We are merely spelling out the meaning of that word. It may further be seen that the section speaks of all buildings...within the limits of an estate, belonging to or held by an intermediary or tenant or other persons.....The word "belonging" undoubtedly refers to legal title. The words "held by an intermediary" also refer to a possession by legal title. The words "held by tenant" also refer to holding by legal title. In the sequence mentioned above, it is proper to construe the word "held" in Section 9 when used in relation to the words "other person" as meaning "lawfully held" by that person. That interpretation flows from the context in which the word "held" has been used. We have earlier mentioned that the said interpretation accords with justice.13. The expression "held" has been used in the Act in various other sections-see Sections 2 (1) (c), 13, 17, 18, 21, 144, 204, 240-A, 298, 304 and 314 to connote possession by legal title. Mr. Misra, learned counsel for the appellants, does not deny that the expression "held" in those sections means held lawfully. But according to him that is because of the context in which the word is used. Mr. Misra is right in saying so but he overlooks the context in which that expression is used in Section 9. We have already made reference to that context. He failed to point out to us any section in the Act, leaving aside Section 9 for the time being where the word "held" has been used as meaning mere holding, lawful or otherwise. In K. K. Handique v. Member, Board of Agricultural Income-tax, Assam, AIR 1966 SC 1191 , this Court was called upon to consider the meaning of the word "holds" in Sections 12 and 13 of the Assam Agricultural Income-tax Act. Subba Rao J.(as he then was), speaking for the Court, observed that the expression "holds" includes a twofold idea of the actual possession of a thing and also of being invested with a legal title though sometimes it is used only to mean actual possession. After reading Sections 12 and 13 together, he observed that the word "holds" in these sections mean holding by legal title. In Eramma v. Verupana, (1966) 2 SCR 626 = (AIR 1966 SC 1879 ), this Court considered the meaning of the word "possessed" in Section 14 (1) of the Hindu Succession Act which laid down that "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner". It held that the property possessed by a female widow, as contemplated in the section, is clearly a property to which she has acquired some kind of title whether before or after the commencement of the Act. It is true that in arriving at that conclusion the Court took into consideration the language of the provision as a whole and also the explanation to the section. The scheme of the Act is to abolish all estates and vest the concerned property in the State but at the same time certain rights were conferred on persons in possession of lands or building. It is reasonable to think that the persons who were within the contemplation of the Act are those who were in possession of lands or buildings on the basis of some legal title. Bearing in mind the purpose with which the legislation was enacted, the scheme of the Act and the language used in Section 9, we are of opinion that the word "held" in Section 9 means lawfully held. In other words, we accept the correctness of the view taken by Mukerji and Dwivedi JJ. For the reasons already mentioned, we are unable to agree with Desai, C. J. that the fact that the appellants had demolished the buildings put up by the respondents and put up some other building in their place had conferred any rights on them under Section 9.
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buildings that had been demolished by the appellants. In the circumstances of the case all that can be said is that the old buildings have been substituted by the new building. Therefore, the owners of the old buildings continue to be the owners of the new building. In that view of the matter it is not necessary to consider whether if a stranger builds a building on the land of another, the true owner of the land is entitled to recover the land with the building on it. Equitable considerations persuade us to hold that when the respondents came back to their village in 1949, they were entitled to recover not only the site but also the buildings constructed on it by the appellants. Hence, it should be held that on the date of vesting, the respondents were the owners of the building in question. In law they were holding thesee no merit in this argument.The settlement contemplated by Section 9 is a deemed settlement. That settlement took place immediately the vesting took place. No inquiry was contemplated before that settlement. If there is any dispute as to who is the settlee, the same has to be decided by the Civil Courts. The State is not concerned with the same. Section 9 merely settles the building on the persons who was holding it on the date of vesting.The expression "held" has been used in the Act in various other sections-see Sections 2 (1) (c), 13, 17, 18, 21, 144, 204, 240-A, 298, 304 and 314 to connote possession by legal title. Mr. Misra, learned counsel for the appellants, does not deny that the expression "held" in those sections means held lawfully. But according to him that is because of the context in which the word is used. Mr. Misra is right in saying so but he overlooks the context in which that expression is used in Section 9. We have already made reference to that context. He failed to point out to us any section in the Act, leaving aside Section 9 for the time being where the word "held" has been used as meaning mere holding, lawful or otherwise. In K. K. Handique v. Member, Board of Agricultural Income-tax, Assam, AIR 1966 SC 1191 , this Court was called upon to consider the meaning of the word "holds" in Sections 12 and 13 of the Assam Agricultural Income-tax Act. Subba Rao J.(as he then was), speaking for the Court, observed that the expression "holds" includes a twofold idea of the actual possession of a thing and also of being invested with a legal title though sometimes it is used only to mean actual possession. After reading Sections 12 and 13 together, he observed that the word "holds" in these sections mean holding by legal title. In Eramma v. Verupana, (1966) 2 SCR 626 = (AIR 1966 SC 1879 ), this Court considered the meaning of the word "possessed" in Section 14 (1) of the Hindu Succession Act which laid down that "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner". It held that the property possessed by a female widow, as contemplated in the section, is clearly a property to which she has acquired some kind of title whether before or after the commencement of the Act. It is true that in arriving at that conclusion the Court took into consideration the language of the provision as a whole and also the explanation to the section. The scheme of the Act is to abolish all estates and vest the concerned property in the State but at the same time certain rights were conferred on persons in possession of lands or building. It is reasonable to think that the persons who were within the contemplation of the Act are those who were in possession of lands or buildings on the basis of some legal title. Bearing in mind the purpose with which the legislation was enacted, the scheme of the Act and the language used in Section 9, we are of opinion that the word "held" in Section 9 means lawfully held. In other words, we accept the correctness of the view taken by Mukerji and Dwivedi JJ. For the reasons already mentioned, we are unable to agree with Desai, C. J. that the fact that the appellants had demolished the buildings put up by the respondents and put up some other building in their place had conferred any rights on them under Sectionis unfortunate that the latter Division Bench should have thought it proper to sit in judgment over the correctness of a decision rendered by a Bench of coordinate jurisdiction.Judicial propriety requires that if a Bench of a High Court is unable to agree with the decision already rendered by anotherBench of the same High Court, the question should be referred to a larger Bench. Otherwise, the decisions of High Courts will not only lose respect in the eyes of the public, it will also make the task of the subordinate Courts difficult.We are unable to persuade ourselves to believe that the Legislature intended to ignore the rights of persons having legal title to possession and wanted to make a gift of any building to a trespasser howsoever recent the trespasser might have been if only he happened to be in physical possession of the building on the date of vesting. We are also unable to discernany legislative policy in support of thatsettlement contemplated by Section 9 is a deemed settlement. That settlement took place immediately the vesting took place. No inquiry was contemplated before that settlement. If there is any dispute as to who is the settlee, the same has to be decided by the Civil Courts. The State is not concerned with the same. Section 9 merely settles the building on the persons who was holding it on the date of vesting.
|
CHANDANA DAS(MALAKAR) Vs. THE STATE OF WEST BENGAL AND OTHERS | follows: 126. In Behram Khurshid Pesikaka v. State of Bombay (1955) 1 SCR 13: AIR 1955 SC 123 : 1955 Cri LJ 215, Mahajan, C.J. speaking for the Constitution Bench, noted the link between the constitutional vision contained in the Preamble and the position of the fundamental rights as a means to facilitate its fulfilment. Through Part III embodies fundamental rights, this was construed to be a part of the wider notion of securing the vision of justice of the Founding Fathers and, as a matter of doctrine, the rights guaranteed were held not to be capable of being waived. Mahajan C.J., observed (AIR p. 146, para 52 : SCR pp. 653-54) 52. …We think that the rights described as fundamental rights are a necessary consequence of the declaration in the Preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy 27. This being the law laid down by this Court, it is clear that both the reasons given by Banumathi, J. cannot be said to be correct, as per the law laid down by this Court. 28. Shri Chakraborty, learned Senior Advocate appearing on behalf of the State, raised an argument based on Article 350B. The said Article reads as follows: 350B. Special Officer for Linguistic Minorities (1) There shall be a Special Officer for linguistic minorities to be appointed by the President. (2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned. 29. This Article only sets up a Special Officer for linguistic minorities, to be appointed by the President, whose duty it is to investigate matters relating to safeguards provided for linguistic minorities and send reports to the President of India, which reports the President shall cause to be laid before each House of Parliament, and send to the Governments of the States concerned. Even a cursory reading of this Article cannot possibly lead to the conclusion that absent a report by the Special Officer, no linguistic minority can claim protection as such under Article 30(1) of the Constitution. 30. In point of fact, in D.A.V. College v. State of Punjab (1971) Supp. SCR 688, this Court held that where the challenge is to a State law, linguistic minority status would have to be determined State-wise (see page 696). This view has been reiterated by the Eleven Judge Bench in T.M.A. Pai Foundation (supra) (see pages 552, 553 and 587). 31. There can be no doubt that qua the State of West Bengal, Sikhs are a linguistic minority vis-à-vis their language, namely, Punjabi, as against the majority language of the State, which is Bengali. The argument of the learned counsel appearing on behalf of the State that the school is, in fact, teaching in the Hindi medium is neither here nor there. What is important is that the fundamental right under Article 30 refers to the establishment of the school as a linguistic minority institution which we have seen is very clearly the case, given paragraphs 5(a) and 5(b) of letter dated 19 th April, 1976. Therefore, the medium of instruction, whether it be Hindi, English, Bengali or some other language would be wholly irrelevant to discover as to whether the said school was founded by a linguistic minority for the purpose of imparting education to members of its community. This argument also, therefore, must be rejected. 32. Seeing the writing on the wall, the learned Senior Advocate appearing for the State made a fervent plea that we should refer this matter to the Constitution Bench, following the order in Shiromani Gurudwara Prabandhak Committee (supra) dated 18 th November, 2010. 33. This matter arose out of a judgment of the High Court of Punjab and Haryana dated 17 th December, 2007, as per which two notifications were issued under the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006, by which the aforesaid Sikh institutions were declared to be minority institutions within the State of Punjab. The High Court had held, following this Courts judgment in Bal Patil v. Union of India (2005) 6 SCC 690 , that the Sikhs were, in fact, population-wise the majority community in the State of Punjab, as a result of which the two notifications were struck down as being violative of Article 14 of the Constitution of India. It is in this backdrop that, by an order dated 18 th November, 2010, a Division Bench of this Court referred this matter to be heard along with other matters by a Constitution Bench. The other matter concerned Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SC 224, in which a review petition was allowed and directed to be heard by a Constitution Bench. In the aforesaid case, the challenge that was raised was grounded on Article 19(1)(g) of the Constitution of India and was not directly related to Article 30 of the Constitution of India. Obviously, this reference order is on different facts and would not avail the respondent State in the present case. 34. As a result, we are of the view that the judgment of Thakur, J. is correct in law. | 1[ds]9. Before embarking on the questions raised in these appeals, it is important to first advert to the West Bengal Board of Secondary Education Act, 1963. It is enough to state that this Act establishes the West Bengal Board of Secondary Education and various Committees and Regional Examination Councils and then lays down their powers. Suffice it to say that it is no part of the powers and duties of the Board or of any authority set up therein to declare that a particular institution is, or is not, a minority institution12. A perusal of the Rules, as they stood prior to the 2008 amendment, would show that in case the provisions of Article 30 of the Constitution apply, further or other rules for the composition, powers, functions of the managing committee or committees of such institutions or class of institutions would be framed. It is admitted, as has been noticed in the judgment of Thakur, J. that no such Rules have been framed under Rule 3313. At this juncture, it may be noted that by a letter dated 19 th April, 1976, Respondent No.4 wrote to the Secretary, West Bengal Board of Secondary Education asking that it may be declared as a minority community institution and the special constitution for the same may be approved on that basis15. It is obvious on a reading of this document that whereas Rule 6 required only one representative of the Sikh community to be on the Management Board, there are three representatives appointed. Equally, whereas Rule 6 requires that there be six guardian representatives to be elected, only four are provided for by this letter. Thus, it cannot be said that by acceptance of this letter, Respondent No.4 has, in any manner, unequivocally waived its right to be treated as a minority institution. On the contrary, the application dated 19 th April, 1976, was to recognise it as a minority institution, and merely because Rule 8(3) of the Rules was purportedly applied, it does not mean that the minority character of the institution was not kept in mind while framing the special constitution for future management of the school. On facts, therefore, it is difficult to appreciate how the Respondent No.4 can be said to have waived its right to be treated as a linguistic minority institution set up by a linguistic minority, namely, the Sikhs in the State of West Bengal23. A reading of the aforesaid judgment would leave no manner of doubt that if Respondent No.4 is a minority institution, Rule 28 of the Rules for Management of Recognized Non-Government Institutions (Aided and Unaided) 1969, cannot possibly apply as there would be a serious infraction of the right of Respondent No.4 to administer the institution with teachers of its choiceWe have already noticed that the competent authorities set up by the aforesaid Act do not give any power to recognise a minority institution. For this reason, it is difficult to agree with the conclusion stated in paragraph 40 of judgment of Banumathi, J. Further, the letter dated 19 th April, 1976 would show that Respondent No.4 was started as a primary school by the Sikh community living in Kolkata to impart education to their children who came from Punjab, so that they may learn their mother tongue and religion, ethics etc. As a matter of fact, this aspect of the matter is no longer res integra26. We have held that it cannot be said that Respondent No.4 is, in any manner, estopped from claiming its minority status on the facts of this case. Quite apart from this, it is settled law that the fundamental right under Article 30 cannot be waived (See St. Xaviers (supra) at pages 260 to 262 per Mathew, J.; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 and 569 to 571.) In the recent judgment in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 , Chandrachud, J. has echoed this sentiment as follows:126. In Behram Khurshid Pesikaka v. State of Bombay (1955) 1 SCR 13: AIR 1955 SC 123 : 1955 Cri LJ 215, Mahajan, C.J. speaking for the Constitution Bench, noted the link between the constitutional vision contained in the Preamble and the position of the fundamental rights as a means to facilitate its fulfilment. Through Part III embodies fundamental rights, this was construed to be a part of the wider notion of securing the vision of justice of the Founding Fathers and, as a matter of doctrine, the rights guaranteed were held not to be capable of being waived. Mahajan C.J., observed (AIR p. 146, para 52 : SCR pp. 653-54)52. …We think that the rights described as fundamental rights are a necessary consequence of the declaration in the Preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunityThese fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy27. This being the law laid down by this Court, it is clear that both the reasons given by Banumathi, J. cannot be said to be correct, as per the law laid down by this Court350B. Special Officer for Linguistic Minorities(1) There shall be a Special Officer for linguistic minorities to be appointed by the President(2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned29. This Article only sets up a Special Officer for linguistic minorities, to be appointed by the President, whose duty it is to investigate matters relating to safeguards provided for linguistic minorities and send reports to the President of India, which reports the President shall cause to be laid before each House of Parliament, and send to the Governments of the States concerned. Even a cursory reading of this Article cannot possibly lead to the conclusion that absent a report by the Special Officer, no linguistic minority can claim protection as such under Article 30(1) of the Constitution30. In point of fact, in D.A.V. College v. State of Punjab (1971) Supp. SCR 688, this Court held that where the challenge is to a State law, linguistic minority status would have to be determined State-wise (see page 696). This view has been reiterated by the Eleven Judge Bench in T.M.A. Pai Foundation (supra) (see pages 552, 553 and 587)32. Seeing the writing on the wall, the learned Senior Advocate appearing for the State made a fervent plea that we should refer this matter to the Constitution Bench, following the order in Shiromani Gurudwara Prabandhak Committee (supra) dated 18 th November, 201033. This matter arose out of a judgment of the High Court of Punjab and Haryana dated 17 th December, 2007, as per which two notifications were issued under the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006, by which the aforesaid Sikh institutions were declared to be minority institutions within the State of Punjab. The High Court had held, following this Courts judgment in Bal Patil v. Union of India (2005) 6 SCC 690 , that the Sikhs were, in fact, population-wise the majority community in the State of Punjab, as a result of which the two notifications were struck down as being violative of Article 14 of the Constitution of India. It is in this backdrop that, by an order dated 18 th November, 2010, a Division Bench of this Court referred this matter to be heard along with other matters by a Constitution Bench. The other matter concerned Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SC 224, in which a review petition was allowed and directed to be heard by a Constitution Bench. In the aforesaid case, the challenge that was raised was grounded on Article 19(1)(g) of the Constitution of India and was not directly related to Article 30 of the Constitution of India. Obviously, this reference order is on different facts and would not avail the respondent State in the present case34. As a result, we are of the view that the judgment of Thakur, J. is correct in law. | 1 | 10,002 | 1,669 | ### 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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follows: 126. In Behram Khurshid Pesikaka v. State of Bombay (1955) 1 SCR 13: AIR 1955 SC 123 : 1955 Cri LJ 215, Mahajan, C.J. speaking for the Constitution Bench, noted the link between the constitutional vision contained in the Preamble and the position of the fundamental rights as a means to facilitate its fulfilment. Through Part III embodies fundamental rights, this was construed to be a part of the wider notion of securing the vision of justice of the Founding Fathers and, as a matter of doctrine, the rights guaranteed were held not to be capable of being waived. Mahajan C.J., observed (AIR p. 146, para 52 : SCR pp. 653-54) 52. …We think that the rights described as fundamental rights are a necessary consequence of the declaration in the Preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy 27. This being the law laid down by this Court, it is clear that both the reasons given by Banumathi, J. cannot be said to be correct, as per the law laid down by this Court. 28. Shri Chakraborty, learned Senior Advocate appearing on behalf of the State, raised an argument based on Article 350B. The said Article reads as follows: 350B. Special Officer for Linguistic Minorities (1) There shall be a Special Officer for linguistic minorities to be appointed by the President. (2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned. 29. This Article only sets up a Special Officer for linguistic minorities, to be appointed by the President, whose duty it is to investigate matters relating to safeguards provided for linguistic minorities and send reports to the President of India, which reports the President shall cause to be laid before each House of Parliament, and send to the Governments of the States concerned. Even a cursory reading of this Article cannot possibly lead to the conclusion that absent a report by the Special Officer, no linguistic minority can claim protection as such under Article 30(1) of the Constitution. 30. In point of fact, in D.A.V. College v. State of Punjab (1971) Supp. SCR 688, this Court held that where the challenge is to a State law, linguistic minority status would have to be determined State-wise (see page 696). This view has been reiterated by the Eleven Judge Bench in T.M.A. Pai Foundation (supra) (see pages 552, 553 and 587). 31. There can be no doubt that qua the State of West Bengal, Sikhs are a linguistic minority vis-à-vis their language, namely, Punjabi, as against the majority language of the State, which is Bengali. The argument of the learned counsel appearing on behalf of the State that the school is, in fact, teaching in the Hindi medium is neither here nor there. What is important is that the fundamental right under Article 30 refers to the establishment of the school as a linguistic minority institution which we have seen is very clearly the case, given paragraphs 5(a) and 5(b) of letter dated 19 th April, 1976. Therefore, the medium of instruction, whether it be Hindi, English, Bengali or some other language would be wholly irrelevant to discover as to whether the said school was founded by a linguistic minority for the purpose of imparting education to members of its community. This argument also, therefore, must be rejected. 32. Seeing the writing on the wall, the learned Senior Advocate appearing for the State made a fervent plea that we should refer this matter to the Constitution Bench, following the order in Shiromani Gurudwara Prabandhak Committee (supra) dated 18 th November, 2010. 33. This matter arose out of a judgment of the High Court of Punjab and Haryana dated 17 th December, 2007, as per which two notifications were issued under the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006, by which the aforesaid Sikh institutions were declared to be minority institutions within the State of Punjab. The High Court had held, following this Courts judgment in Bal Patil v. Union of India (2005) 6 SCC 690 , that the Sikhs were, in fact, population-wise the majority community in the State of Punjab, as a result of which the two notifications were struck down as being violative of Article 14 of the Constitution of India. It is in this backdrop that, by an order dated 18 th November, 2010, a Division Bench of this Court referred this matter to be heard along with other matters by a Constitution Bench. The other matter concerned Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SC 224, in which a review petition was allowed and directed to be heard by a Constitution Bench. In the aforesaid case, the challenge that was raised was grounded on Article 19(1)(g) of the Constitution of India and was not directly related to Article 30 of the Constitution of India. Obviously, this reference order is on different facts and would not avail the respondent State in the present case. 34. As a result, we are of the view that the judgment of Thakur, J. is correct in law.
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1
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by the aforesaid Act do not give any power to recognise a minority institution. For this reason, it is difficult to agree with the conclusion stated in paragraph 40 of judgment of Banumathi, J. Further, the letter dated 19 th April, 1976 would show that Respondent No.4 was started as a primary school by the Sikh community living in Kolkata to impart education to their children who came from Punjab, so that they may learn their mother tongue and religion, ethics etc. As a matter of fact, this aspect of the matter is no longer res integra26. We have held that it cannot be said that Respondent No.4 is, in any manner, estopped from claiming its minority status on the facts of this case. Quite apart from this, it is settled law that the fundamental right under Article 30 cannot be waived (See St. Xaviers (supra) at pages 260 to 262 per Mathew, J.; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 and 569 to 571.) In the recent judgment in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 , Chandrachud, J. has echoed this sentiment as follows:126. In Behram Khurshid Pesikaka v. State of Bombay (1955) 1 SCR 13: AIR 1955 SC 123 : 1955 Cri LJ 215, Mahajan, C.J. speaking for the Constitution Bench, noted the link between the constitutional vision contained in the Preamble and the position of the fundamental rights as a means to facilitate its fulfilment. Through Part III embodies fundamental rights, this was construed to be a part of the wider notion of securing the vision of justice of the Founding Fathers and, as a matter of doctrine, the rights guaranteed were held not to be capable of being waived. Mahajan C.J., observed (AIR p. 146, para 52 : SCR pp. 653-54)52. …We think that the rights described as fundamental rights are a necessary consequence of the declaration in the Preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunityThese fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy27. This being the law laid down by this Court, it is clear that both the reasons given by Banumathi, J. cannot be said to be correct, as per the law laid down by this Court350B. Special Officer for Linguistic Minorities(1) There shall be a Special Officer for linguistic minorities to be appointed by the President(2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned29. This Article only sets up a Special Officer for linguistic minorities, to be appointed by the President, whose duty it is to investigate matters relating to safeguards provided for linguistic minorities and send reports to the President of India, which reports the President shall cause to be laid before each House of Parliament, and send to the Governments of the States concerned. Even a cursory reading of this Article cannot possibly lead to the conclusion that absent a report by the Special Officer, no linguistic minority can claim protection as such under Article 30(1) of the Constitution30. In point of fact, in D.A.V. College v. State of Punjab (1971) Supp. SCR 688, this Court held that where the challenge is to a State law, linguistic minority status would have to be determined State-wise (see page 696). This view has been reiterated by the Eleven Judge Bench in T.M.A. Pai Foundation (supra) (see pages 552, 553 and 587)32. Seeing the writing on the wall, the learned Senior Advocate appearing for the State made a fervent plea that we should refer this matter to the Constitution Bench, following the order in Shiromani Gurudwara Prabandhak Committee (supra) dated 18 th November, 201033. This matter arose out of a judgment of the High Court of Punjab and Haryana dated 17 th December, 2007, as per which two notifications were issued under the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006, by which the aforesaid Sikh institutions were declared to be minority institutions within the State of Punjab. The High Court had held, following this Courts judgment in Bal Patil v. Union of India (2005) 6 SCC 690 , that the Sikhs were, in fact, population-wise the majority community in the State of Punjab, as a result of which the two notifications were struck down as being violative of Article 14 of the Constitution of India. It is in this backdrop that, by an order dated 18 th November, 2010, a Division Bench of this Court referred this matter to be heard along with other matters by a Constitution Bench. The other matter concerned Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SC 224, in which a review petition was allowed and directed to be heard by a Constitution Bench. In the aforesaid case, the challenge that was raised was grounded on Article 19(1)(g) of the Constitution of India and was not directly related to Article 30 of the Constitution of India. Obviously, this reference order is on different facts and would not avail the respondent State in the present case34. As a result, we are of the view that the judgment of Thakur, J. is correct in law.
|
Ramswarup Guru Chhote Balakdas Vs. Motiram Khandu Patil & Others | by notification specify the date on which the provisions of the Act shall apply to any public trust or any class of public trusts and different dates may be specified for such trusts in different areas. Under Sections 18 and 19 a trustee of a public trust, to which the Act has been applied, is obliged to make an applicator for registration of the public trust giving in such application the information specified therein. Under Section 19, the Deputy or the Assistant Charity Commissioner appointed under the Act has to make an inquiry in the prescribed manner for ascertaining the various matters set out therein. On completion of such inquiry and on its findings being recorded the Deputy or the Assistant Charity Commissioner has under S. 21 to make entries in the register kept under S. 17 in accordance with the findings recorded by him under sec. 20 or if appeals are preferred in accordance with the final decision of the competent authority provided by the Act, and such entries are made conclusive subject to the provisions of the Act or to any change recorded under the provisions thereinafter following. Before its amendment in 1960, S. 28 provided that all public trusts registered under any of the enactments specified in Schedule A thereto shall be deemed to have been registered under the Act from the date on which the Act is applied to them. Schedule A sets out those Acts which are not relevant for the purpose of this appeal. As a result of reorganisation of the then Bombay State and the territorial changes made in l956 and 1960 certain areas were excluded and certain other areas were brought into the new State of Maharashtra. The legislature of that State therefore amended S. 28 by S. 15 of the Bombay Public Trusts (Unification and Amendment) Act, 6 of 1960. A new Schedule amongst other things - viz., Schedule AA, was added after Schedule A which included amongst other Acts the Madhya Pradesh Public Trusts Act, 1951. The effect of S. 28 and the insertion of Schedule AA in the Act was that the trusts registered under the Madhya Pradesh Public Trusts Act, 1951, were deemed to have been registered under the Bombay Act. The amendment became necessary as new areas which originally formed part of the Madhya Pradesh State were brought into the Maharashtra State and the policy of the legislature was to save trusts already registered under the Madhya Pradesh Public Trusts Act, 1951 from having to be once again registered under the Bombay Act. The amendment Act, l960 was brought into force as from January 1, 1961. By a notification dated January 31, 1961 issued under Section 1 (4) the Act was made applicable to certain kinds of trusts. It is not in dispute that the present trust is one of the kinds of trusts to which the Act was made applicable as from February 1, 1961. The said notification runs as follows :"In exercise of the powers conferred by sub-section (4) of section 1 of the Bombay Public Trusts Act, 1950.... the Government of Maharashtra specifies the 1st day of February l961 to be the date on which the provisions of the said Act shall, ......apply to the following classes of public trusts......in the State to which the Act does not already apply."6. The question is whether Section 28 can be said to apply to the present Trust. Though Section 28 is couched in general terms it cannot mean that all trusts registered under the Madhya Pradesh Act are to be deemed to be registered under the Bombay Act irrespective of whether they are still situate in Madhya Pradesh and are liable to be administered under the Madhya Pradesh Public Trusts Act, 1951. The aforesaid notification itself makes this clear by using the words "shall apply to the following classes of public trusts in the State to which the Act does not already apply......" These words indicate clearly that the Act is to apply to those trusts which as a result of the re-organisation of the State have come within the new State of Maharashtra and to which the Bombay Act did not apply. Therefore, the Act cannot apply and is not intended to apply to trusts which are still outside the State and within the Madhya Pradesh State. There can therefore be no doubt that such trusts in spite of the general language of Section 28 would still be governed by and administered under the Madhya Pradesh Act.If Section 28 were to be construed, as the appellant desires us to construe, there would be the anomalous position that the authorities under both the Acts can claim the right to supervise and control the administration and management of the trust properties. The curious result of such a construction would be that though the trust is situate and is administered at Burhanpur in Madhya Pradesh the authorities under the Bombay Act can claim to control its management.7. There is no dispute that the trust is administered at Burhanpur and the bulk of its properties, except the three pieces of lands situate in the District of Dhulia, are all situate in the Madhya Pradesh State.The fact that a part of its property is situate in Maharashtra State, though the trust is within Madhya Pradesh State, would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Bombay Act. Such a division of the Trust and its administration is not contemplated by either of the two Acts. It is therefore clear that the present Trust does not fall within the ambit of Section 28 and is not one of those trusts which can be deemed to be registered under the Bombay Act. That being so, it is obviously not a trust which fulfils the second condition of Section 88B of the Bombay Tenancy and Agricultural Lands Act and the appellant cannot be said to be entitled to the certificate under that section. | 0[ds]Thus for eligibility for an exemption certificate three conditions have to be satisfied: (1) that the land in question is the property of a trust or an institution for public religious worship, (2) that the trust is or is deemed to be registered underthe Bombay Public Trusts Act, 1950, and (3) that the entire income of such lands is appropriated for the purposes of such trust. There is no dispute with regard to conditions (1) andall the three conditions are satisfied and a certificate is obtained by the trust under sub-section (2) of S. 88-B, Ss. 32 to 32R would not apply to the land belonging to such trust and the tenant of such land cannot be regarded a deemed purchaser under theis not in dispute that the present trust is one of the kinds of trusts to which the Act was made applicable as from February 1,Section 28 is couched in general terms it cannot mean that all trusts registered under the Madhya Pradesh Act are to be deemed to be registered under the Bombay Act irrespective of whether they are still situate in Madhya Pradesh and are liable to be administered underthe Madhya Pradesh Public Trusts Act, 1951. The aforesaid notification itself makes this clear by using the words "shall apply to the following classes of public trusts in the State to which the Act does not already apply......" These words indicate clearly that the Act is to apply to those trusts which as a result of the re-organisation of the State have come within the new State of Maharashtra and to which the Bombay Act did not apply. Therefore, the Act cannot apply and is not intended to apply to trusts which are still outside the State and within the Madhya Pradesh State. There can therefore be no doubt that such trusts in spite of the general language of Section 28 would still be governed by and administered under the Madhya Pradesh Act.If Section 28 were to be construed, as the appellant desires us to construe, there would be the anomalous position that the authorities under both the Acts can claim the right to supervise and control the administration and management of the trust properties. The curious result of such a construction would be that though the trust is situate and is administered at Burhanpur in Madhya Pradesh the authorities under the Bombay Act can claim to control its management.7. There is no dispute that the trust is administered at Burhanpur and the bulk of its properties, except the three pieces of lands situate in the District of Dhulia, are all situate in the Madhya Pradesh State.The fact that a part of its property is situate in Maharashtra State, though the trust is within Madhya Pradesh State, would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Bombay Act. Such a division of the Trust and its administration is not contemplated by either of the two Acts. It is therefore clear that the present Trust does not fall within the ambit of Section 28 and is not one of those trusts which can be deemed to be registered under the Bombay Act. That being so, it is obviously not a trust which fulfils the second condition of Section 88B of the Bombay Tenancy and Agricultural Lands Act and the appellant cannot be said to be entitled to the certificate under that section. | 0 | 1,909 | 622 | ### 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:
by notification specify the date on which the provisions of the Act shall apply to any public trust or any class of public trusts and different dates may be specified for such trusts in different areas. Under Sections 18 and 19 a trustee of a public trust, to which the Act has been applied, is obliged to make an applicator for registration of the public trust giving in such application the information specified therein. Under Section 19, the Deputy or the Assistant Charity Commissioner appointed under the Act has to make an inquiry in the prescribed manner for ascertaining the various matters set out therein. On completion of such inquiry and on its findings being recorded the Deputy or the Assistant Charity Commissioner has under S. 21 to make entries in the register kept under S. 17 in accordance with the findings recorded by him under sec. 20 or if appeals are preferred in accordance with the final decision of the competent authority provided by the Act, and such entries are made conclusive subject to the provisions of the Act or to any change recorded under the provisions thereinafter following. Before its amendment in 1960, S. 28 provided that all public trusts registered under any of the enactments specified in Schedule A thereto shall be deemed to have been registered under the Act from the date on which the Act is applied to them. Schedule A sets out those Acts which are not relevant for the purpose of this appeal. As a result of reorganisation of the then Bombay State and the territorial changes made in l956 and 1960 certain areas were excluded and certain other areas were brought into the new State of Maharashtra. The legislature of that State therefore amended S. 28 by S. 15 of the Bombay Public Trusts (Unification and Amendment) Act, 6 of 1960. A new Schedule amongst other things - viz., Schedule AA, was added after Schedule A which included amongst other Acts the Madhya Pradesh Public Trusts Act, 1951. The effect of S. 28 and the insertion of Schedule AA in the Act was that the trusts registered under the Madhya Pradesh Public Trusts Act, 1951, were deemed to have been registered under the Bombay Act. The amendment became necessary as new areas which originally formed part of the Madhya Pradesh State were brought into the Maharashtra State and the policy of the legislature was to save trusts already registered under the Madhya Pradesh Public Trusts Act, 1951 from having to be once again registered under the Bombay Act. The amendment Act, l960 was brought into force as from January 1, 1961. By a notification dated January 31, 1961 issued under Section 1 (4) the Act was made applicable to certain kinds of trusts. It is not in dispute that the present trust is one of the kinds of trusts to which the Act was made applicable as from February 1, 1961. The said notification runs as follows :"In exercise of the powers conferred by sub-section (4) of section 1 of the Bombay Public Trusts Act, 1950.... the Government of Maharashtra specifies the 1st day of February l961 to be the date on which the provisions of the said Act shall, ......apply to the following classes of public trusts......in the State to which the Act does not already apply."6. The question is whether Section 28 can be said to apply to the present Trust. Though Section 28 is couched in general terms it cannot mean that all trusts registered under the Madhya Pradesh Act are to be deemed to be registered under the Bombay Act irrespective of whether they are still situate in Madhya Pradesh and are liable to be administered under the Madhya Pradesh Public Trusts Act, 1951. The aforesaid notification itself makes this clear by using the words "shall apply to the following classes of public trusts in the State to which the Act does not already apply......" These words indicate clearly that the Act is to apply to those trusts which as a result of the re-organisation of the State have come within the new State of Maharashtra and to which the Bombay Act did not apply. Therefore, the Act cannot apply and is not intended to apply to trusts which are still outside the State and within the Madhya Pradesh State. There can therefore be no doubt that such trusts in spite of the general language of Section 28 would still be governed by and administered under the Madhya Pradesh Act.If Section 28 were to be construed, as the appellant desires us to construe, there would be the anomalous position that the authorities under both the Acts can claim the right to supervise and control the administration and management of the trust properties. The curious result of such a construction would be that though the trust is situate and is administered at Burhanpur in Madhya Pradesh the authorities under the Bombay Act can claim to control its management.7. There is no dispute that the trust is administered at Burhanpur and the bulk of its properties, except the three pieces of lands situate in the District of Dhulia, are all situate in the Madhya Pradesh State.The fact that a part of its property is situate in Maharashtra State, though the trust is within Madhya Pradesh State, would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Bombay Act. Such a division of the Trust and its administration is not contemplated by either of the two Acts. It is therefore clear that the present Trust does not fall within the ambit of Section 28 and is not one of those trusts which can be deemed to be registered under the Bombay Act. That being so, it is obviously not a trust which fulfils the second condition of Section 88B of the Bombay Tenancy and Agricultural Lands Act and the appellant cannot be said to be entitled to the certificate under that section.
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0
### Explanation:
Thus for eligibility for an exemption certificate three conditions have to be satisfied: (1) that the land in question is the property of a trust or an institution for public religious worship, (2) that the trust is or is deemed to be registered underthe Bombay Public Trusts Act, 1950, and (3) that the entire income of such lands is appropriated for the purposes of such trust. There is no dispute with regard to conditions (1) andall the three conditions are satisfied and a certificate is obtained by the trust under sub-section (2) of S. 88-B, Ss. 32 to 32R would not apply to the land belonging to such trust and the tenant of such land cannot be regarded a deemed purchaser under theis not in dispute that the present trust is one of the kinds of trusts to which the Act was made applicable as from February 1,Section 28 is couched in general terms it cannot mean that all trusts registered under the Madhya Pradesh Act are to be deemed to be registered under the Bombay Act irrespective of whether they are still situate in Madhya Pradesh and are liable to be administered underthe Madhya Pradesh Public Trusts Act, 1951. The aforesaid notification itself makes this clear by using the words "shall apply to the following classes of public trusts in the State to which the Act does not already apply......" These words indicate clearly that the Act is to apply to those trusts which as a result of the re-organisation of the State have come within the new State of Maharashtra and to which the Bombay Act did not apply. Therefore, the Act cannot apply and is not intended to apply to trusts which are still outside the State and within the Madhya Pradesh State. There can therefore be no doubt that such trusts in spite of the general language of Section 28 would still be governed by and administered under the Madhya Pradesh Act.If Section 28 were to be construed, as the appellant desires us to construe, there would be the anomalous position that the authorities under both the Acts can claim the right to supervise and control the administration and management of the trust properties. The curious result of such a construction would be that though the trust is situate and is administered at Burhanpur in Madhya Pradesh the authorities under the Bombay Act can claim to control its management.7. There is no dispute that the trust is administered at Burhanpur and the bulk of its properties, except the three pieces of lands situate in the District of Dhulia, are all situate in the Madhya Pradesh State.The fact that a part of its property is situate in Maharashtra State, though the trust is within Madhya Pradesh State, would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Bombay Act. Such a division of the Trust and its administration is not contemplated by either of the two Acts. It is therefore clear that the present Trust does not fall within the ambit of Section 28 and is not one of those trusts which can be deemed to be registered under the Bombay Act. That being so, it is obviously not a trust which fulfils the second condition of Section 88B of the Bombay Tenancy and Agricultural Lands Act and the appellant cannot be said to be entitled to the certificate under that section.
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Major Metals Limited Vs. Union of India & Others | the assessing officer, was not satisfactory. It is well settled that in view of Section 68 of the Act, where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income tax as the income of the assessee of that previous year, if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the assessing officer, not satisfactory.29. In the exercise of the power of judicial review particularly against the findings of the Settlement Commission this Court would not be justified in re-appreciating the findings of fact which, in any event, are based on the material on record. The view taken is consistent with the law laid down by the Supreme Court.30. Finally that leaves the Court to deal with the penalty which has been imposed upon the petitioner. The submission which has been urged on behalf of the petitioner is that no notice to show cause was issued to the petitioner before the Settlement Commission proceeded to impose a penalty and there was hence a violation of the principles of natural justice.31. The first aspect of the matter which merits emphasis is that the petitioner moved the Settlement Commission specifically with a request for the settlement of the entire case including the grant of a waiver of penalty under the applicable provisions of the Income Tax Act, 1961. The Settlement Commission is vested with the power under Section 245H to grant an immunity wholly or in part from the imposition of any penalty under the Act where it is satisfied that any person who has made an application for settlement has co-operated with the Commission in the proceedings before it and has made a full and true disclosure of his income and of the manner in which the income has been derived. Under sub-section (6) of Section 245D, every order passed under sub-section (4) by the Settlement Commission is required to provide for the terms of settlement including any demand by way of tax, penalty or interest. It is in this perspective that the petitioner, when it sought settlement of the case which was pending before the Assessing Officer, expressly sought a direction in regard to the grant of a waiver of the penalty payable otherwise under the provisions of the Act. Section 274 stipulates that no order imposing a penalty under Chapter XXI shall be made unless the assessee has been heard or has been given a reasonable opportunity of being heard. Evidently the assessee here was cognizant of the fact that the very object and purpose of the application was, inter alia, to seek a waiver of the imposition of a penalty and the assessee went before the Settlement Commission in the present case armed with such a request. Secondly, as the order passed by the Settlement Commission indicates, the assessee was heard specifically on the issue of penalty. The contention of the petitioner which has been recorded in para 28 of the decision of the Settlement Commission was that it had fully co-operated in the proceedings of the Commission and that it had made a full and true disclosure of the particulars of its income. The Commission considered the submission and held that looked at from the perspective of the test of human probabilities laid down by the Supreme Court and on the totality of the evidence, the contention of the assessee that it had genuinely received such high share premiums must fail. The Commission held that the assessee had not come clean before it. The assessee had offered an amount of Rs.10 lacs in each of the Assessment Years in question based on a story of having earned income for which no records were available, without touching upon the real issues for which the applicant was being pursued by the Revenue. The Commission has, in our view, with justification come to the conclusion that the attempt on the part of the assessee was merely to create a smoke screen in order to shut out further investigation. In these circumstances, the view which has been taken by the Settlement Commission has been after complying with the principles of natural justice and after furnishing to the assessee an opportunity of being heard specifically on the issue of penalty. The Settlement Commission is bound by the mandate of the Act, which includes Section 274. The Settlement Commission has to hear the applicant on the question of penalty. The proceeding before the Settlement Commission cannot be disjointed into parts, particularly having regard to the time limit set for disposal. The Commission has furnished a reasonable opportunity of hearing to the assessee and has heard him. No prejudice is shown. The Settlement Commission has imposed a penalty of Rs.2.75 crores. Section 271(1)(c) provides for the imposition of a penalty where the assessee has concealed the particulars of his income or has furnished inaccurate particulars of such income. In such a situation the penalty shall not be less than the amount of tax sought to be evaded but shall not exceed three times the amount of tax sought to be evaded. The total income tax demand in the present case, according to the petitioner, which has been arrived at on behalf of the Revenue works out to Rs.1.96 crores for AY 2008-09 and Rs.82.40 lacs for AY 2009-10. The total penalty of Rs.2.75 crores has been clarified by a corrigendum dated 30 December 2010 issued by the Settlement Commission to be on a pro rata basis as an amount of Rs.1.92 crores for AY 2008-09 and Rs.82.50 lacs for AY 2009-10. The penalty which has been imposed is thus commensurate with the provisions of Section 271(1)(c). In that view of the matter, we do not find any merit in the challenge to the order of the Settlement Commission on the aspect of penalty.32. For these reasons, having heard the counsel, we are of the view that there is no merit in the petition. | 0[ds]It is impossible to accept the submission. The jurisdiction of the Settlement Commission having been invoked under Section 245C, the Commission, when it passed its order dated 18 October 2010 under Section 245D(3), specifically called upon the Commissioner to verify the genuineness of the loans and the credit worthiness of the entities who had allegedly given loans of Rs.3 lacs each (M/s. Oleander Manufacturing Credit Pvt. Ltd. and M/s. Tristar Agency Pvt. Ltd.) during FY09 and to enquire into the genuineness of the conversion of loans to share capital and share premium by the issue of shares. The Commissioner in his report dated 22 November 2010 adverted to the directions of the Commission and stated that a shortage of time had prevented the Assessing Officer from enquiring into the creditworthiness of the persons who had advanced moneys to the petitioner in the form of loans and share applications. The Commissioner, however, stated that all the parties concerned had confirmed having advanced loans to the petitioner; that all persons were income tax assessees and, therefore, the identity of the persons who had advanced the loans was established. The genuineness of the loan transactions, the credit worthiness of the entities who had allegedly advanced the loans and the genuineness of the conversion of the loans into share capital and share premium against the issuance of shares specifically formed a subject matter of the reference made to the Commissioner under Section 245D(3). The Commissioner dealt with a part of his mandate leaving the rest not analyzed, for reasons of time. These were all matters relating to the casenot covered by the applicationbut nonetheless referred to in the report of the Commissioner. The Commissioner, by the terms of reference, had to verify the genuineness of the transactions and credit worthiness of the parties. If the Commissioner were to hold that the transactions were genuine and parties were credit worthy, that would be an input before the Commission, but would not conclude the issue. Contrariwise, if the Commissioner were to hold that the transactions were sham and fictitious, it would still be for the Settlement Commission to arrive at its determination when it settled the case. The nature of the determination by the Commissioner does not determine the jurisdiction of the Commission. The expression relating to the case is an expression of width and amplitude. The report of the Commissioner furnished in pursuance of the directions of the Settlement Commission under Section 245D(3) cannot be read in a sense disjointed from the terms of reference made by the Commission to him. The report refers to the matters upon which he was called upon to investigate. All those matters would fall within the jurisdiction of the Commission as matters relating to the case and referred to in the report of the Commissioner. Consequently even on a literal and textual construction of Section 245D(4), we are satisfied that the Settlement Commission acted within the parameters of its jurisdiction in the present case. The position which emerges on a plain and literal construction of the language of the statute is supported by even a contextual construction. Parliament intended that the entire assessment is before the Settlement Commission. The Commission completes the process of assessmentas the decision in BrijLal holdsas part of the settlement of the case. Until the Settlement Commission is seized of the proceedings, there is no parallel assessment contemplated in law. Comprehensiveness, finality and conclusiveness are the three attributes of the function assigned to the Commission. That object is achieved when the entire assessment is completed, as part of the jurisdiction to settle a case. To dilute this position would defeat the object which Parliament intended to achieve. Once an assessee moves the Settlement Commission, the statute expressly mandates that the application cannot be withdrawn. Unless the Commission in a given case decides to reject the application, it is entitled to resolve the case by settlement. An assessee who moves the Settlement Commission cannot be allowed to be anything other than fair and candid. Nor can he assert an unqualified right that the Settlement Commission should either accept what he discloses or leave him to another round of assessment before the Assessing Officer.In the present case it needs to be emphasised that the Settlement Commission has considered all the material on record including the material which had a bearing on the credit worthiness and financial standing of the alleged subscribing companies to the share capital of the petitioner. None of the companies was held to have a financial standing or credit worthiness which would justify making of such a large investment of Rs.6 crores at a premium of Rs.990/per share. The allotment of shares, it must be noted, has taken place in pursuance of a private placement. The principles which have been applied in relation particularly to the public subscription of shares of a public limited company can obviously have no application to the facts of a case such as the present. The view which has been taken by the Settlement Commission is consequently borne out on the basis of the material on record. This is not a case where the Commission has proceeded contrary to law or on the basis of no evidence. There is no perversity in the findings of the Settlement Commission.In the exercise of the power of judicial review particularly against the findings of the Settlement Commission this Court would not be justified inthe findings of fact which, in any event, are based on the material on record. The view taken is consistent with the law laid down by the Supreme Court.The first aspect of the matter which merits emphasis is that the petitioner moved the Settlement Commission specifically with a request for the settlement of the entire case including the grant of a waiver of penalty under the applicable provisions of the Income Tax Act, 1961. The Settlement Commission is vested with the power under Section 245H to grant an immunity wholly or in part from the imposition of any penalty under the Act where it is satisfied that any person who has made an application for settlement hascooperated with theCommission in the proceedings before it and has made a full and true disclosure of his income and of the manner in which the income has been derived. Under(6) of Section 245D, every order passed under(4) by the Settlement Commission is required to provide for the terms of settlement including any demand by way of tax, penalty or interest. It is in this perspective that the petitioner, when it sought settlement of the case which was pending before the Assessing Officer, expressly sought a direction in regard to the grant of a waiver of the penalty payable otherwise under the provisions of the Act. Section 274 stipulates that no order imposing a penalty under Chapter XXI shall be made unless the assessee has been heard or has been given a reasonable opportunity of being heard. Evidently the assessee here was cognizant of the fact that the very object and purpose of the application was, inter alia, to seek a waiver of the imposition of a penalty and the assessee went before the Settlement Commission in the present case armed with such a request. Secondly, as the order passed by the Settlement Commission indicates, the assessee was heard specifically on the issue of penalty. The contention of the petitioner which has been recorded in para 28 of the decision of the Settlement Commission was that it had fullyin the proceedings of the Commission and that it had made a full and true disclosure of the particulars of its income. The Commission considered the submission and held that looked at from the perspective of the test of human probabilities laid down by the Supreme Court and on the totality of the evidence, the contention of the assessee that it had genuinely received such high share premiums must fail. The Commission held that the assessee had not come clean before it. The assessee had offered an amount of Rs.10 lacs in each of the Assessment Years in question based on a story of having earned income for which no records were available, without touching upon the real issues for which the applicant was being pursued by the Revenue. The Commission has, in our view, with justification come to the conclusion that the attempt on the part of the assessee was merely to create a smoke screen in order to shut out further investigation. In these circumstances, the view which has been taken by the Settlement Commission has been after complying with the principles of natural justice and after furnishing to the assessee an opportunity of being heard specifically on the issue of penalty. The Settlement Commission is bound by the mandate of the Act, which includes Section 274. The Settlement Commission has to hear the applicant on the question of penalty. The proceeding before the Settlement Commission cannot be disjointed into parts, particularly having regard to the time limit set for disposal. The Commission has furnished a reasonable opportunity of hearing to the assessee and has heard him. No prejudice is shown. The Settlement Commission has imposed a penalty of Rs.2.75 crores. Section 271(1)(c) provides for the imposition of a penalty where the assessee has concealed the particulars of his income or has furnished inaccurate particulars of such income. In such a situation the penalty shall not be less than the amount of tax sought to be evaded but shall not exceed three times the amount of tax sought to be evaded. The total income tax demand in the present case, according to the petitioner, which has been arrived at on behalf of the Revenue works out to Rs.1.96 crores for AYand Rs.82.40 lacs for AYThe total penalty of Rs.2.75 crores has been clarified by a corrigendum dated 30 December 2010 issued by the Settlement Commission to be on a pro rata basis as an amount of Rs.1.92 crores for AYand Rs.82.50 lacs for AYThe penalty which has been imposed is thus commensurate with the provisions of Section 271(1)(c). In that view of the matter, we do not find any merit in the challenge to the order of the Settlement Commission on the aspect of penalty.32. For these reasons, having heard the counsel, we are of the view that there is no merit in the petition. | 0 | 13,250 | 1,870 | ### Instruction:
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the assessing officer, was not satisfactory. It is well settled that in view of Section 68 of the Act, where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income tax as the income of the assessee of that previous year, if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the assessing officer, not satisfactory.29. In the exercise of the power of judicial review particularly against the findings of the Settlement Commission this Court would not be justified in re-appreciating the findings of fact which, in any event, are based on the material on record. The view taken is consistent with the law laid down by the Supreme Court.30. Finally that leaves the Court to deal with the penalty which has been imposed upon the petitioner. The submission which has been urged on behalf of the petitioner is that no notice to show cause was issued to the petitioner before the Settlement Commission proceeded to impose a penalty and there was hence a violation of the principles of natural justice.31. The first aspect of the matter which merits emphasis is that the petitioner moved the Settlement Commission specifically with a request for the settlement of the entire case including the grant of a waiver of penalty under the applicable provisions of the Income Tax Act, 1961. The Settlement Commission is vested with the power under Section 245H to grant an immunity wholly or in part from the imposition of any penalty under the Act where it is satisfied that any person who has made an application for settlement has co-operated with the Commission in the proceedings before it and has made a full and true disclosure of his income and of the manner in which the income has been derived. Under sub-section (6) of Section 245D, every order passed under sub-section (4) by the Settlement Commission is required to provide for the terms of settlement including any demand by way of tax, penalty or interest. It is in this perspective that the petitioner, when it sought settlement of the case which was pending before the Assessing Officer, expressly sought a direction in regard to the grant of a waiver of the penalty payable otherwise under the provisions of the Act. Section 274 stipulates that no order imposing a penalty under Chapter XXI shall be made unless the assessee has been heard or has been given a reasonable opportunity of being heard. Evidently the assessee here was cognizant of the fact that the very object and purpose of the application was, inter alia, to seek a waiver of the imposition of a penalty and the assessee went before the Settlement Commission in the present case armed with such a request. Secondly, as the order passed by the Settlement Commission indicates, the assessee was heard specifically on the issue of penalty. The contention of the petitioner which has been recorded in para 28 of the decision of the Settlement Commission was that it had fully co-operated in the proceedings of the Commission and that it had made a full and true disclosure of the particulars of its income. The Commission considered the submission and held that looked at from the perspective of the test of human probabilities laid down by the Supreme Court and on the totality of the evidence, the contention of the assessee that it had genuinely received such high share premiums must fail. The Commission held that the assessee had not come clean before it. The assessee had offered an amount of Rs.10 lacs in each of the Assessment Years in question based on a story of having earned income for which no records were available, without touching upon the real issues for which the applicant was being pursued by the Revenue. The Commission has, in our view, with justification come to the conclusion that the attempt on the part of the assessee was merely to create a smoke screen in order to shut out further investigation. In these circumstances, the view which has been taken by the Settlement Commission has been after complying with the principles of natural justice and after furnishing to the assessee an opportunity of being heard specifically on the issue of penalty. The Settlement Commission is bound by the mandate of the Act, which includes Section 274. The Settlement Commission has to hear the applicant on the question of penalty. The proceeding before the Settlement Commission cannot be disjointed into parts, particularly having regard to the time limit set for disposal. The Commission has furnished a reasonable opportunity of hearing to the assessee and has heard him. No prejudice is shown. The Settlement Commission has imposed a penalty of Rs.2.75 crores. Section 271(1)(c) provides for the imposition of a penalty where the assessee has concealed the particulars of his income or has furnished inaccurate particulars of such income. In such a situation the penalty shall not be less than the amount of tax sought to be evaded but shall not exceed three times the amount of tax sought to be evaded. The total income tax demand in the present case, according to the petitioner, which has been arrived at on behalf of the Revenue works out to Rs.1.96 crores for AY 2008-09 and Rs.82.40 lacs for AY 2009-10. The total penalty of Rs.2.75 crores has been clarified by a corrigendum dated 30 December 2010 issued by the Settlement Commission to be on a pro rata basis as an amount of Rs.1.92 crores for AY 2008-09 and Rs.82.50 lacs for AY 2009-10. The penalty which has been imposed is thus commensurate with the provisions of Section 271(1)(c). In that view of the matter, we do not find any merit in the challenge to the order of the Settlement Commission on the aspect of penalty.32. For these reasons, having heard the counsel, we are of the view that there is no merit in the petition.
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bearing on the credit worthiness and financial standing of the alleged subscribing companies to the share capital of the petitioner. None of the companies was held to have a financial standing or credit worthiness which would justify making of such a large investment of Rs.6 crores at a premium of Rs.990/per share. The allotment of shares, it must be noted, has taken place in pursuance of a private placement. The principles which have been applied in relation particularly to the public subscription of shares of a public limited company can obviously have no application to the facts of a case such as the present. The view which has been taken by the Settlement Commission is consequently borne out on the basis of the material on record. This is not a case where the Commission has proceeded contrary to law or on the basis of no evidence. There is no perversity in the findings of the Settlement Commission.In the exercise of the power of judicial review particularly against the findings of the Settlement Commission this Court would not be justified inthe findings of fact which, in any event, are based on the material on record. The view taken is consistent with the law laid down by the Supreme Court.The first aspect of the matter which merits emphasis is that the petitioner moved the Settlement Commission specifically with a request for the settlement of the entire case including the grant of a waiver of penalty under the applicable provisions of the Income Tax Act, 1961. The Settlement Commission is vested with the power under Section 245H to grant an immunity wholly or in part from the imposition of any penalty under the Act where it is satisfied that any person who has made an application for settlement hascooperated with theCommission in the proceedings before it and has made a full and true disclosure of his income and of the manner in which the income has been derived. Under(6) of Section 245D, every order passed under(4) by the Settlement Commission is required to provide for the terms of settlement including any demand by way of tax, penalty or interest. It is in this perspective that the petitioner, when it sought settlement of the case which was pending before the Assessing Officer, expressly sought a direction in regard to the grant of a waiver of the penalty payable otherwise under the provisions of the Act. Section 274 stipulates that no order imposing a penalty under Chapter XXI shall be made unless the assessee has been heard or has been given a reasonable opportunity of being heard. Evidently the assessee here was cognizant of the fact that the very object and purpose of the application was, inter alia, to seek a waiver of the imposition of a penalty and the assessee went before the Settlement Commission in the present case armed with such a request. Secondly, as the order passed by the Settlement Commission indicates, the assessee was heard specifically on the issue of penalty. The contention of the petitioner which has been recorded in para 28 of the decision of the Settlement Commission was that it had fullyin the proceedings of the Commission and that it had made a full and true disclosure of the particulars of its income. The Commission considered the submission and held that looked at from the perspective of the test of human probabilities laid down by the Supreme Court and on the totality of the evidence, the contention of the assessee that it had genuinely received such high share premiums must fail. The Commission held that the assessee had not come clean before it. The assessee had offered an amount of Rs.10 lacs in each of the Assessment Years in question based on a story of having earned income for which no records were available, without touching upon the real issues for which the applicant was being pursued by the Revenue. The Commission has, in our view, with justification come to the conclusion that the attempt on the part of the assessee was merely to create a smoke screen in order to shut out further investigation. In these circumstances, the view which has been taken by the Settlement Commission has been after complying with the principles of natural justice and after furnishing to the assessee an opportunity of being heard specifically on the issue of penalty. The Settlement Commission is bound by the mandate of the Act, which includes Section 274. The Settlement Commission has to hear the applicant on the question of penalty. The proceeding before the Settlement Commission cannot be disjointed into parts, particularly having regard to the time limit set for disposal. The Commission has furnished a reasonable opportunity of hearing to the assessee and has heard him. No prejudice is shown. The Settlement Commission has imposed a penalty of Rs.2.75 crores. Section 271(1)(c) provides for the imposition of a penalty where the assessee has concealed the particulars of his income or has furnished inaccurate particulars of such income. In such a situation the penalty shall not be less than the amount of tax sought to be evaded but shall not exceed three times the amount of tax sought to be evaded. The total income tax demand in the present case, according to the petitioner, which has been arrived at on behalf of the Revenue works out to Rs.1.96 crores for AYand Rs.82.40 lacs for AYThe total penalty of Rs.2.75 crores has been clarified by a corrigendum dated 30 December 2010 issued by the Settlement Commission to be on a pro rata basis as an amount of Rs.1.92 crores for AYand Rs.82.50 lacs for AYThe penalty which has been imposed is thus commensurate with the provisions of Section 271(1)(c). In that view of the matter, we do not find any merit in the challenge to the order of the Settlement Commission on the aspect of penalty.32. For these reasons, having heard the counsel, we are of the view that there is no merit in the petition.
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Shafin Jahan Vs. Asokan K.M. and Ors | later quoted with approval by the House of Lords in In Re F (Mental Patient: Sterilisation [1990] 2 AC 1. In paragraph 79 of Re: SA (Vulnerable Adult with Capacity: Marriage), Justice Munby observes: The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors. 47. In relation to Article 8 of the European Convention on Human Rights (ECHR), Justice Munby observes in paragraph 66: In terms of the ECHR, the use of the inherent jurisdiction in this context is compatible with Article 8 in just the same manner as the MCA 2005 is compatible. Any interference with the right to respect for an individuals private or family life is justified to protect his health and or to protect his right to enjoy his Article 8 rights as he may choose without the undue influence (or other adverse intervention) of a third party. Any orders made by the court in a particular case must be only those which are necessary and proportionate to the facts of that case, again in like manner to the approach under the MCA 2005. 48. However, in paragraph 76, he qualifies the above principle with the following comment: It is, of course, of the essence of humanity that adults are entitled to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are. 49. The judgment of Re: SA (Vulnerable Adult with Capacity: Marriage) (supra) authored by Justice Munby and cited in the above Court of Appeal case was in the context of the exercise of parens patriae to protect an eighteen year old girl from the risk of an unsuitable arranged marriage on the ground that although the girl did not lack capacity, yet she was undoubtedly a "vulnerable adult". 50. Interestingly, in another case, namely, A Local Authority v. HB, MB, ML and BL (By their Childrens Guardian) [2017] EWHC 1437 (Fam), the High Courts inherent jurisdiction was invoked to protect children who were allegedly going to be taken by their mother to Syria where they were at a risk of radicalization. Although the High Court dismissed the applications on facts for want of evidence, yet it made certain observations regarding extremism and radicalization. 51. Mr. Divan has drawn our attention to the authority in A Local Authority v. Y [2017] EWHC 968 (Fam) wherein the High Court (Family Division) invoked its inherent jurisdiction to protect a young person, the Defendant Y, from radicalization. 52. Relying upon the aforesaid decisions, he emphasized on the concept that when the major is a vulnerable adult, the High Court Under Article 226 of the Constitution of India can exercise the parens patriae doctrine which has been exercised in this case. The aforesaid judgments, in our considered opinion, are not applicable to the facts of the present case. We say so without any hesitation as we have interacted with the Respondent No. 9 and there is nothing to suggest that she suffers from any kind of mental incapacity or vulnerability. She was absolutely categorical in her submissions and unequivocal in the expression of her choice. 53. It is obligatory to state here thatexpression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom.The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible.Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition.54. Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script. The individual signature is the insignia of the concept. 55. In the case at hand, the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the Appellant. Therefore, the High Court has completely erred by taking upon itself the burden of annulling the marriage between the Appellant and the Respondent No. 9 when both stood embedded to their vow of matrimony. | 1[ds]18. The aforesaid adumbration calls for restatement of the law pertaining to writ of habeas corpus which has always been considered as a great constitutional privilege or the first security of civil liberty. The writ is meant to provide an expeditious and effective remedy against illegal detention, for such detention affects the liberty and freedom of the person who is in confinement28. In the instant case, the High Court, as is noticeable from the impugned verdict, has been erroneously guided by some kind of social phenomenon that was frescoed before it. The writ court has taken exception to the marriage of the Respondent No. 9 herein with the Appellant. It felt perturbed. As we see, there was nothing to be taken exception to. Initially, Hadiya had declined to go with her father and expressed her desire to stay with the Respondent No. 7 before the High Court and in the first writ it had so directed. The adamantine attitude of the father, possibly impelled by obsessive parental love, compelled him to knock at the doors of the High Court in another Habeas Corpus petition whereupon the High Court directed the production of Hadiya who appeared on the given date along with the Appellant herein whom the High Court calls a stranger. But Hadiya would insist that she had entered into marriage with him. True it is, she had gone with the Respondent No. 7 before the High Court but that does not mean and can never mean that she, as a major, could not enter into a marital relationship. But, the High Court unwarrantably took exception to the same forgetting that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married. And, that is where the error has crept in. The High Court should have, after an interaction as regards her choice, directed that she was free to go where she wished to29. The High Court further erred by reflecting upon the social radicalization and certain other aspects. In a writ of habeas corpus, especially in the instant case, it was absolutely unnecessary. If there was any criminality in any sphere, it is for the law enforcing agency to do the needful but as long as the detenue has not been booked under law to justify the detention which is under challenge, the obligation of the Court is to exercise the celebrated writ that breathes life into our constitutional guarantee of freedom. The approach of the High Court on the said score is wholly fallacious30. The High Court has been swayed away by the strategy, as it thought, adopted by the Respondent No. 7 before it in connivance with the present Appellant and others to move Hadiya out of the country. That is not within the ambit of the writ of Habeas Corpus. The future activity, if any, is required to be governed and controlled by the State in accordance with law. The apprehension was not within the arena of jurisdiction regard being had to the lis before itThe aforesaid judgments, in our considered opinion, are not applicable to the facts of the present case. We say so without any hesitation as we have interacted with the Respondent No. 9 and there is nothing to suggest that she suffers from any kind of mental incapacity or vulnerability. She was absolutely categorical in her submissions and unequivocal in the expression of her choice53. It is obligatory to state heren of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteede said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith ish of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition.. Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script. The individual signature is the insignia of the concept55. In the case at hand, the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the Appellant. Therefore, the High Court has completely erred by taking upon itself the burden of annulling the marriage between the Appellant and the Respondent No. 9 when both stood embedded to their vow of matrimony57. While re-affirming the conclusions set out in the operative order, I agree with the erudite judgment of the learned Chief Justice. I have added my own thoughts on the judicial parchment to express my anguish with the grievous miscarriage of justice which took place in the present case and to formulate principles in the expectation that such an injustice shall not again be visited either on Hadiya or any other citizen. The High Court of Kerala has committed an error of jurisdiction. But what to my mind, is disconcerting, is the manner in which the liberty and dignity of a citizen have been subjected to judicial affront. The months which Hadiya lost, placed in the custody of her father and against her will cannot be brought back. The reason for this concurring judgment is that it is the duty of this Court, in the exercise of its constitutional functions to formulate principles in order to ensure that the valued rights of citizens are not subjugated at the altar of a paternalistic social structure67. There are two serious concerns which emerge from the judgment of the Kerala High Court. The first is that the High Court transgressed the limits of its jurisdiction in issuing a declaration annulling the marriage of Shafin Jahan and Hadiya in the course of the hearing of a habeas corpus petition. | 1 | 10,497 | 1,276 | ### Instruction:
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later quoted with approval by the House of Lords in In Re F (Mental Patient: Sterilisation [1990] 2 AC 1. In paragraph 79 of Re: SA (Vulnerable Adult with Capacity: Marriage), Justice Munby observes: The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors. 47. In relation to Article 8 of the European Convention on Human Rights (ECHR), Justice Munby observes in paragraph 66: In terms of the ECHR, the use of the inherent jurisdiction in this context is compatible with Article 8 in just the same manner as the MCA 2005 is compatible. Any interference with the right to respect for an individuals private or family life is justified to protect his health and or to protect his right to enjoy his Article 8 rights as he may choose without the undue influence (or other adverse intervention) of a third party. Any orders made by the court in a particular case must be only those which are necessary and proportionate to the facts of that case, again in like manner to the approach under the MCA 2005. 48. However, in paragraph 76, he qualifies the above principle with the following comment: It is, of course, of the essence of humanity that adults are entitled to be eccentric, entitled to be unorthodox, entitled to be obstinate, entitled to be irrational. Many are. 49. The judgment of Re: SA (Vulnerable Adult with Capacity: Marriage) (supra) authored by Justice Munby and cited in the above Court of Appeal case was in the context of the exercise of parens patriae to protect an eighteen year old girl from the risk of an unsuitable arranged marriage on the ground that although the girl did not lack capacity, yet she was undoubtedly a "vulnerable adult". 50. Interestingly, in another case, namely, A Local Authority v. HB, MB, ML and BL (By their Childrens Guardian) [2017] EWHC 1437 (Fam), the High Courts inherent jurisdiction was invoked to protect children who were allegedly going to be taken by their mother to Syria where they were at a risk of radicalization. Although the High Court dismissed the applications on facts for want of evidence, yet it made certain observations regarding extremism and radicalization. 51. Mr. Divan has drawn our attention to the authority in A Local Authority v. Y [2017] EWHC 968 (Fam) wherein the High Court (Family Division) invoked its inherent jurisdiction to protect a young person, the Defendant Y, from radicalization. 52. Relying upon the aforesaid decisions, he emphasized on the concept that when the major is a vulnerable adult, the High Court Under Article 226 of the Constitution of India can exercise the parens patriae doctrine which has been exercised in this case. The aforesaid judgments, in our considered opinion, are not applicable to the facts of the present case. We say so without any hesitation as we have interacted with the Respondent No. 9 and there is nothing to suggest that she suffers from any kind of mental incapacity or vulnerability. She was absolutely categorical in her submissions and unequivocal in the expression of her choice. 53. It is obligatory to state here thatexpression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom.The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible.Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition.54. Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script. The individual signature is the insignia of the concept. 55. In the case at hand, the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the Appellant. Therefore, the High Court has completely erred by taking upon itself the burden of annulling the marriage between the Appellant and the Respondent No. 9 when both stood embedded to their vow of matrimony.
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of the High Court in another Habeas Corpus petition whereupon the High Court directed the production of Hadiya who appeared on the given date along with the Appellant herein whom the High Court calls a stranger. But Hadiya would insist that she had entered into marriage with him. True it is, she had gone with the Respondent No. 7 before the High Court but that does not mean and can never mean that she, as a major, could not enter into a marital relationship. But, the High Court unwarrantably took exception to the same forgetting that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married. And, that is where the error has crept in. The High Court should have, after an interaction as regards her choice, directed that she was free to go where she wished to29. The High Court further erred by reflecting upon the social radicalization and certain other aspects. In a writ of habeas corpus, especially in the instant case, it was absolutely unnecessary. If there was any criminality in any sphere, it is for the law enforcing agency to do the needful but as long as the detenue has not been booked under law to justify the detention which is under challenge, the obligation of the Court is to exercise the celebrated writ that breathes life into our constitutional guarantee of freedom. The approach of the High Court on the said score is wholly fallacious30. The High Court has been swayed away by the strategy, as it thought, adopted by the Respondent No. 7 before it in connivance with the present Appellant and others to move Hadiya out of the country. That is not within the ambit of the writ of Habeas Corpus. The future activity, if any, is required to be governed and controlled by the State in accordance with law. The apprehension was not within the arena of jurisdiction regard being had to the lis before itThe aforesaid judgments, in our considered opinion, are not applicable to the facts of the present case. We say so without any hesitation as we have interacted with the Respondent No. 9 and there is nothing to suggest that she suffers from any kind of mental incapacity or vulnerability. She was absolutely categorical in her submissions and unequivocal in the expression of her choice53. It is obligatory to state heren of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteede said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith ish of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition.. Non-acceptance of her choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived. The duty of the Court is to uphold the right and not to abridge the sphere of the right unless there is a valid authority of law. Sans lawful sanction, the centripodal value of liberty should allow an individual to write his/her script. The individual signature is the insignia of the concept55. In the case at hand, the father in his own stand and perception may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the Appellant. Therefore, the High Court has completely erred by taking upon itself the burden of annulling the marriage between the Appellant and the Respondent No. 9 when both stood embedded to their vow of matrimony57. While re-affirming the conclusions set out in the operative order, I agree with the erudite judgment of the learned Chief Justice. I have added my own thoughts on the judicial parchment to express my anguish with the grievous miscarriage of justice which took place in the present case and to formulate principles in the expectation that such an injustice shall not again be visited either on Hadiya or any other citizen. The High Court of Kerala has committed an error of jurisdiction. But what to my mind, is disconcerting, is the manner in which the liberty and dignity of a citizen have been subjected to judicial affront. The months which Hadiya lost, placed in the custody of her father and against her will cannot be brought back. The reason for this concurring judgment is that it is the duty of this Court, in the exercise of its constitutional functions to formulate principles in order to ensure that the valued rights of citizens are not subjugated at the altar of a paternalistic social structure67. There are two serious concerns which emerge from the judgment of the Kerala High Court. The first is that the High Court transgressed the limits of its jurisdiction in issuing a declaration annulling the marriage of Shafin Jahan and Hadiya in the course of the hearing of a habeas corpus petition.
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M/s. Grauer and Weil Ltd Vs. Collector of Central Excise, Baroda | their letter dated 19-9-1981 addressed to the excise authorities: "Further to our Declaration dated 15-4-1981 we have to inform you that the premises where Chromic Acid is manufacturing is not a factory within the meaning of Section 2(m) of Factories Act, 1948. This premises is completely segregated and the goods manufactured therein are wholly exempted from the payment of duty, by virtue of Notification No. 46/81 dated 1-3-1981, as amended by Notification No. 92/81 dated 1-4-1981." * That they honestly believed that their Chromic Acid Section is not a factory and on such belief did not pay excise duty on the flakes manufactured therein till the Excise authorities held otherwise. According to the appellants, the above contents of the letter not only prove their bona fides but negate the allegations of fraud, collusion, wilful misstatement or suppression of facts also. To bring home their above contention the appellants have relied upon the following passage from the judgment of this Court in C.C .E. v. Chemphar Drugs &Liniments I: (SCC p. 1 3 1, para 9) "In order to make the demand for duty sustainable beyond A period of six months and up to a period of 5 years in view of the proviso to subsection (1) of Section II -A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case." * (emphasis supplied) 14.As has been observed in the above quoted passage the question as to whether in a given case the requirements for invoking the proviso are fulfilled o r not is one of fact. It has therefore to be ascertained whether in the set of facts and circumstances of the instant case, the Collector and Tribunal were justified in concluding that the appellant was guilty of wilful misstatement and suppression of facts. On perusal of the record we find that in arriving at the above conclusion the Collector and the Tribunal relied upon the following facts and circumstances: (i) The reference to the declaration dated 15-4-198 1 by the appellants in their letter dated 19-9-1981 was incorrect and misleading inasmuch as the said declaration related to Growel Chromates Pvt. and was filed for availing exemption under Notification No. 105/80 dated 19-6-1980, which pertained to factories wherein the total investment on plant and machinery was not over 10 lakhs, and had no reference or relevance to Notification No. 46/81 dated 1-3-1981;(ii) The copy of the prescribed form of the above declaration dated 15- 4-1981, which was filed in the impugned proceedings indicates that, against the column "reference to the notification under which exemption from duty is claimed" is the remark "105/80 dated 19-6- 1980; Not as 92/81 (not falling under Factories Act having less than 10 workers)" but in the original of the declaration form the words "Not No. 92/81 (not falling under Factories Act having less than 10 workers)" are significantly missing;(iii) The claim of the appellants that the Factories Act authorities had on 9-2-1982 approved their layout plan wherein the Chromic Acid Section has been described as "premises which do not come under Section 2(m) of the Factories Act ", was unfounded for it had not been signed by a duly empower ed officer administering the Factories Act;(iv) The statement of non-factory status of the Chromic Acid Section in the letter dated 19-9-1981 was a conclusion drawn without any factual basis for the same, for, on the own showing of the appellants, the endorsement regarding the "non-factory" status of the said section was made for the first time on or around 9-2-1 982; and(v) Though the appellants showed the Chromic Acid Section in the ground plan submitted to the Factories Act authorities and claimed , non-factory status for it, in the ground plan submitted to the Excise authorities for approval of licence for manufacture of Sodium Bichromate they did not even indicate its existence. 15. In our opinion from the above facts and circumstances when taken together, a reasonable conclusion can certainly and legitimately be drawn that the appellants wilfully and deliberately made misstatements and suppressed material facts to avoid payment of excise duty. In other words it is no t a case of simple inaction or faliure on the part of the appellants to furnish material information.16. It has lastly been contended that in any view of the matter the appellants could not be asked to pay penalty as the breach in question flowed from the bona fide belief that they were not liable to pay excise duty. In support of this contention the appellants have relied upon the following passage from the judgment of this Court in Hindustan Steel Ltd. v. State of Orissa2: (SCC p. 630, par a 8)"An order imposing penalty for failure to carry out a statutory obligation 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 law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation." *17. Since we have already found that the appellants have acted in conscious disregard of their statutory obligations and deliberately suppressed material facts the above contention can neither be accepted nor the above quoted passage pressed into service. | 0[ds]15. In our opinion from the above facts and circumstances when taken together, a reasonable conclusion can certainly and legitimately be drawn that the appellants wilfully and deliberately made misstatements and suppressed material facts to avoid payment of excise duty. In other words it is no t a case of simple inaction or faliure on the part of the appellants to furnish material information.16. It has lastly been contended that in any view of the matter the appellants could not be asked to pay penalty as the breach in question flowed from the bona fide belief that they were not liable to pay excise duty. In support of this contention the appellants have relied upon the following passage from the judgment of this Court in Hindustan Steel Ltd. v. State of Orissa2: (SCC p. 630, par a 8)"An order imposing penalty for failure to carry out a statutory obligation 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 law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation." *17. Since we have already found that the appellants have acted in conscious disregard of their statutory obligations and deliberately suppressed material facts the above contention can neither be accepted nor the above quoted passage pressed into service. | 0 | 3,630 | 250 | ### Instruction:
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their letter dated 19-9-1981 addressed to the excise authorities: "Further to our Declaration dated 15-4-1981 we have to inform you that the premises where Chromic Acid is manufacturing is not a factory within the meaning of Section 2(m) of Factories Act, 1948. This premises is completely segregated and the goods manufactured therein are wholly exempted from the payment of duty, by virtue of Notification No. 46/81 dated 1-3-1981, as amended by Notification No. 92/81 dated 1-4-1981." * That they honestly believed that their Chromic Acid Section is not a factory and on such belief did not pay excise duty on the flakes manufactured therein till the Excise authorities held otherwise. According to the appellants, the above contents of the letter not only prove their bona fides but negate the allegations of fraud, collusion, wilful misstatement or suppression of facts also. To bring home their above contention the appellants have relied upon the following passage from the judgment of this Court in C.C .E. v. Chemphar Drugs &Liniments I: (SCC p. 1 3 1, para 9) "In order to make the demand for duty sustainable beyond A period of six months and up to a period of 5 years in view of the proviso to subsection (1) of Section II -A of the Act, it has to be established that the duty of excise has not been levied or paid or short-levied or short-paid, or erroneously refunded by reasons of either fraud or collusion or wilful misstatement or suppression of facts or contravention of any provision of the Act or Rules made thereunder, with intent to evade payment of duty. Something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before the period of six months. Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case." * (emphasis supplied) 14.As has been observed in the above quoted passage the question as to whether in a given case the requirements for invoking the proviso are fulfilled o r not is one of fact. It has therefore to be ascertained whether in the set of facts and circumstances of the instant case, the Collector and Tribunal were justified in concluding that the appellant was guilty of wilful misstatement and suppression of facts. On perusal of the record we find that in arriving at the above conclusion the Collector and the Tribunal relied upon the following facts and circumstances: (i) The reference to the declaration dated 15-4-198 1 by the appellants in their letter dated 19-9-1981 was incorrect and misleading inasmuch as the said declaration related to Growel Chromates Pvt. and was filed for availing exemption under Notification No. 105/80 dated 19-6-1980, which pertained to factories wherein the total investment on plant and machinery was not over 10 lakhs, and had no reference or relevance to Notification No. 46/81 dated 1-3-1981;(ii) The copy of the prescribed form of the above declaration dated 15- 4-1981, which was filed in the impugned proceedings indicates that, against the column "reference to the notification under which exemption from duty is claimed" is the remark "105/80 dated 19-6- 1980; Not as 92/81 (not falling under Factories Act having less than 10 workers)" but in the original of the declaration form the words "Not No. 92/81 (not falling under Factories Act having less than 10 workers)" are significantly missing;(iii) The claim of the appellants that the Factories Act authorities had on 9-2-1982 approved their layout plan wherein the Chromic Acid Section has been described as "premises which do not come under Section 2(m) of the Factories Act ", was unfounded for it had not been signed by a duly empower ed officer administering the Factories Act;(iv) The statement of non-factory status of the Chromic Acid Section in the letter dated 19-9-1981 was a conclusion drawn without any factual basis for the same, for, on the own showing of the appellants, the endorsement regarding the "non-factory" status of the said section was made for the first time on or around 9-2-1 982; and(v) Though the appellants showed the Chromic Acid Section in the ground plan submitted to the Factories Act authorities and claimed , non-factory status for it, in the ground plan submitted to the Excise authorities for approval of licence for manufacture of Sodium Bichromate they did not even indicate its existence. 15. In our opinion from the above facts and circumstances when taken together, a reasonable conclusion can certainly and legitimately be drawn that the appellants wilfully and deliberately made misstatements and suppressed material facts to avoid payment of excise duty. In other words it is no t a case of simple inaction or faliure on the part of the appellants to furnish material information.16. It has lastly been contended that in any view of the matter the appellants could not be asked to pay penalty as the breach in question flowed from the bona fide belief that they were not liable to pay excise duty. In support of this contention the appellants have relied upon the following passage from the judgment of this Court in Hindustan Steel Ltd. v. State of Orissa2: (SCC p. 630, par a 8)"An order imposing penalty for failure to carry out a statutory obligation 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 law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation." *17. Since we have already found that the appellants have acted in conscious disregard of their statutory obligations and deliberately suppressed material facts the above contention can neither be accepted nor the above quoted passage pressed into service.
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15. In our opinion from the above facts and circumstances when taken together, a reasonable conclusion can certainly and legitimately be drawn that the appellants wilfully and deliberately made misstatements and suppressed material facts to avoid payment of excise duty. In other words it is no t a case of simple inaction or faliure on the part of the appellants to furnish material information.16. It has lastly been contended that in any view of the matter the appellants could not be asked to pay penalty as the breach in question flowed from the bona fide belief that they were not liable to pay excise duty. In support of this contention the appellants have relied upon the following passage from the judgment of this Court in Hindustan Steel Ltd. v. State of Orissa2: (SCC p. 630, par a 8)"An order imposing penalty for failure to carry out a statutory obligation 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 law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation." *17. Since we have already found that the appellants have acted in conscious disregard of their statutory obligations and deliberately suppressed material facts the above contention can neither be accepted nor the above quoted passage pressed into service.
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Annagouda Nathgouda Patil Vs. Court Of Wards And Another | chap. V. Part II, S.9. It has been held in a large number of cases that the expression "nearest relations of the parents means and refers to the sapindas of the father and in their default the sapindas of the mother both in order of propinquity vide Maynes Hindu Law, Edn 11; Art. 621, p. 741. In the case before us both the plaintiffs and defendant 4 are sapindas of Firangojirao, the plaintiffs being the sisters sons of Firangojirao, while the latter is his paternal uncles son. It is not disputed that apart from the changes introduced by the Hindu Law of Inheritance (Amendment) Act, (Act II [2] of 1929),the place of the paternal uncles son in the time of heirs under the Mitakshara Law of Succession is much higher than that of the sisters son, and the Mayukha Law, which prevails in the State of Bombay, does not make any difference in this respect. Under the Mitakshara Law, the paternal uncle comes just after the paternal grandfather and his son follows him immediately. By Act II [2] of 1929, however, four other relations have been introduced between the grandfather and the paternal uncle and they are the sons daughter, daughters daughter, sister and sisters son and the paternal uncle and his son are thus postponed to these four relations by the Hindu Law of Inheritance Act of 1929. The question is, whether the provisions of this Act can at all be invoked to determine the heirs of a Hindu female in respect of her stridhan property. The object of the Act as stated in the preamble is to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate; and S. 1 (2) expressly lays down that"the Act applies only to persons who but for the passing of this Act would have been subject to the Law of Mitakshara in respect of the provisions herein enacted and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will."Thus the scope of the Act is limited. It governs succession only to the separate property of a Hindu male who dies intestate. It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all. It is to be noted that the Act does not make these four relations statutory heirs under the Mitakshara Law in all circumstances and for all purposes; it makes them heirs only when the propositus is a male and the property in respect to which it is sought to be applied is his separate property. Whether this distinction between male and female propositus is at all reasonable is another matter, but the language of the Act makes this distinction expressly and so long as the language is clear and unambiguous, no other consideration is at all relevant. This is the view which has been taken, and in our opinion quite rightly, in a number of cases of the Madras, Patna and Nagpur High Courts : Vide Mahalakshmma v. Suryanarayana Sastri, I. L. R. (1947) Mad. 23;Shakuntalabai v. Court of Wards, I. L. R. (1942) Nag. 629,Talukraj Kuer v. Bacha Kuer ,26 Pat. 150,Kuppuswami v. Manickasari, A. I. R. (37) 1950 Mad. 196 . We are not unmindful to the fact that a contrary view has been expressed in certain decisions of the Bombay, Lahore and Allahabad High Courts. Shamrao v. Raghunandan, I. L. R. (1939) Bom. 228,Mt. Charjo v. Dinanath, A. I. R. (24) 1937 Lah. 196;Kehar Singh v. Attar Singh, A. I. R. (31) 1944 lah. 442;Indore Pal v. Humangi Debi, I. L. R. (1949) ALL, 816. The line of reasoning that is adopted in most of the decisions where the contrary view is taken can be thus estate in the language of Somajee J. vide Shamrao v. Raghunandan, I. L. R. (1939) Bom. 228 at p. 230."The Act is not sought to be applied to determine the succession to the stridhan of a Hindu maiden but is sought to be used by the petitioner to ascertain the fourth class of heirs to this stridhan of a Hindu maiden mentioned at p. 139 of Mullas Hindu Law ..... The heirs of the father at the time of her death have to be ascertained in accordance with the Hindu Law as it existed at the time of the death of Bai Champubai. Thus the Act comes into operation for ascertaining the order in which the heirs of her father would be entitled to succeed to his estate, because the heirs of the father in the order of propinquity who would be entitled to succeed to him if he died on 3rd August 1937 would be the heirs of Bai Champubai in the absence of the uterline brother, the mother and the father."7. It is true that we have got to ascertain who the heirs of the father are at the date when the daughter dies, but the enquiry is for the purpose of finding out who the successor to the estate of the daughter is. This being the subject of the enquiry, the operation of Act (II [2] of 1929) is excluded by its express terms and for that purpose the Act is to be treated as non-existent. In other words, the stridhan heirs are to be ascertained with reference to the general provisions of the Hindu Law of Inheritance ignoring the statutory heirs who have been introduced by the Act. The fallacy in the line of approach adopted in these cases seems to be that they treat the Inheritance Act of 1929 as amending or altering the Mitakshara Law of Succession in all cases and for all purposes, whereas the Act has absolutely no operation when succession to the separate property of a male is not the subject-matter of investigation. | 0[ds]Thus the scope of the Act is limited. It governs succession only to the separate property of a Hindu male who dies intestate. It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all. It is to be noted that the Act does not make these four relations statutory heirs under the Mitakshara Law in all circumstances and for all purposes; it makes them heirs only when the propositus is a male and the property in respect to which it is sought to be applied is his separate property. Whether this distinction between male and female propositus is at all reasonable is another matter, but the language of the Act makes this distinction expressly and so long as the language is clear and unambiguous, no other consideration is at all relevant.It is true that we have got to ascertain who the heirs of the father are at the date when the daughter dies, but the enquiry is for the purpose of finding out who the successor to the estate of the daughter is. This being the subject of the enquiry, the operation of Act (II [2] of 1929) is excluded by its express terms and for that purpose the Act is to be treated as non-existent. In other words, the stridhan heirs are to be ascertained with reference to the general provisions of the Hindu Law of Inheritance ignoring the statutory heirs who have been introduced by the Act. The fallacy in the line of approach adopted in these cases seems to be that they treat the Inheritance Act of 1929 as amending or altering the Mitakshara Law of Succession in all cases and for all purposes, whereas the Act has absolutely no operation when succession to the separate property of a male is not the subject-matter of investigation. | 0 | 3,208 | 348 | ### Instruction:
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chap. V. Part II, S.9. It has been held in a large number of cases that the expression "nearest relations of the parents means and refers to the sapindas of the father and in their default the sapindas of the mother both in order of propinquity vide Maynes Hindu Law, Edn 11; Art. 621, p. 741. In the case before us both the plaintiffs and defendant 4 are sapindas of Firangojirao, the plaintiffs being the sisters sons of Firangojirao, while the latter is his paternal uncles son. It is not disputed that apart from the changes introduced by the Hindu Law of Inheritance (Amendment) Act, (Act II [2] of 1929),the place of the paternal uncles son in the time of heirs under the Mitakshara Law of Succession is much higher than that of the sisters son, and the Mayukha Law, which prevails in the State of Bombay, does not make any difference in this respect. Under the Mitakshara Law, the paternal uncle comes just after the paternal grandfather and his son follows him immediately. By Act II [2] of 1929, however, four other relations have been introduced between the grandfather and the paternal uncle and they are the sons daughter, daughters daughter, sister and sisters son and the paternal uncle and his son are thus postponed to these four relations by the Hindu Law of Inheritance Act of 1929. The question is, whether the provisions of this Act can at all be invoked to determine the heirs of a Hindu female in respect of her stridhan property. The object of the Act as stated in the preamble is to alter the order in which certain heirs of a Hindu male dying intestate are entitled to succeed to his estate; and S. 1 (2) expressly lays down that"the Act applies only to persons who but for the passing of this Act would have been subject to the Law of Mitakshara in respect of the provisions herein enacted and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will."Thus the scope of the Act is limited. It governs succession only to the separate property of a Hindu male who dies intestate. It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all. It is to be noted that the Act does not make these four relations statutory heirs under the Mitakshara Law in all circumstances and for all purposes; it makes them heirs only when the propositus is a male and the property in respect to which it is sought to be applied is his separate property. Whether this distinction between male and female propositus is at all reasonable is another matter, but the language of the Act makes this distinction expressly and so long as the language is clear and unambiguous, no other consideration is at all relevant. This is the view which has been taken, and in our opinion quite rightly, in a number of cases of the Madras, Patna and Nagpur High Courts : Vide Mahalakshmma v. Suryanarayana Sastri, I. L. R. (1947) Mad. 23;Shakuntalabai v. Court of Wards, I. L. R. (1942) Nag. 629,Talukraj Kuer v. Bacha Kuer ,26 Pat. 150,Kuppuswami v. Manickasari, A. I. R. (37) 1950 Mad. 196 . We are not unmindful to the fact that a contrary view has been expressed in certain decisions of the Bombay, Lahore and Allahabad High Courts. Shamrao v. Raghunandan, I. L. R. (1939) Bom. 228,Mt. Charjo v. Dinanath, A. I. R. (24) 1937 Lah. 196;Kehar Singh v. Attar Singh, A. I. R. (31) 1944 lah. 442;Indore Pal v. Humangi Debi, I. L. R. (1949) ALL, 816. The line of reasoning that is adopted in most of the decisions where the contrary view is taken can be thus estate in the language of Somajee J. vide Shamrao v. Raghunandan, I. L. R. (1939) Bom. 228 at p. 230."The Act is not sought to be applied to determine the succession to the stridhan of a Hindu maiden but is sought to be used by the petitioner to ascertain the fourth class of heirs to this stridhan of a Hindu maiden mentioned at p. 139 of Mullas Hindu Law ..... The heirs of the father at the time of her death have to be ascertained in accordance with the Hindu Law as it existed at the time of the death of Bai Champubai. Thus the Act comes into operation for ascertaining the order in which the heirs of her father would be entitled to succeed to his estate, because the heirs of the father in the order of propinquity who would be entitled to succeed to him if he died on 3rd August 1937 would be the heirs of Bai Champubai in the absence of the uterline brother, the mother and the father."7. It is true that we have got to ascertain who the heirs of the father are at the date when the daughter dies, but the enquiry is for the purpose of finding out who the successor to the estate of the daughter is. This being the subject of the enquiry, the operation of Act (II [2] of 1929) is excluded by its express terms and for that purpose the Act is to be treated as non-existent. In other words, the stridhan heirs are to be ascertained with reference to the general provisions of the Hindu Law of Inheritance ignoring the statutory heirs who have been introduced by the Act. The fallacy in the line of approach adopted in these cases seems to be that they treat the Inheritance Act of 1929 as amending or altering the Mitakshara Law of Succession in all cases and for all purposes, whereas the Act has absolutely no operation when succession to the separate property of a male is not the subject-matter of investigation.
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Thus the scope of the Act is limited. It governs succession only to the separate property of a Hindu male who dies intestate. It does not alter the law as regards the devolution of any other kind of property owned by a Hindu male and does not purport to regulate succession to the property of a Hindu female at all. It is to be noted that the Act does not make these four relations statutory heirs under the Mitakshara Law in all circumstances and for all purposes; it makes them heirs only when the propositus is a male and the property in respect to which it is sought to be applied is his separate property. Whether this distinction between male and female propositus is at all reasonable is another matter, but the language of the Act makes this distinction expressly and so long as the language is clear and unambiguous, no other consideration is at all relevant.It is true that we have got to ascertain who the heirs of the father are at the date when the daughter dies, but the enquiry is for the purpose of finding out who the successor to the estate of the daughter is. This being the subject of the enquiry, the operation of Act (II [2] of 1929) is excluded by its express terms and for that purpose the Act is to be treated as non-existent. In other words, the stridhan heirs are to be ascertained with reference to the general provisions of the Hindu Law of Inheritance ignoring the statutory heirs who have been introduced by the Act. The fallacy in the line of approach adopted in these cases seems to be that they treat the Inheritance Act of 1929 as amending or altering the Mitakshara Law of Succession in all cases and for all purposes, whereas the Act has absolutely no operation when succession to the separate property of a male is not the subject-matter of investigation.
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State of Karnataka and Another Vs. Messrs Hansa Corporation | registered, to maintain accounts or to submit returns. The High Court also found the registration fee of Rs. 25 prescribed under the rules, the liability to maintain accounts in the manner prescribed and to submit monthly and yearly returns as constituting unreasonable restriction s on the fundamental right of the petty dealers to carry on their trade or business.20. Learned Attorney-General urged that this contention was no where to be found in the petition filed by the petitioners in the High Court and, therefore, the High Court was in error in entertaining the contention. Unfortunately, the judgment does not show that learned Advocate-General who appeared for the State raised such an objection to the entertaining of the contention on behalf of the petitioners by the High Court. Not only has the High Court permitted the contention to be raised but accepted the same. In fairness to the petitioners it would be unjust to shut out the contention on this technical ground, though we must note that Mr. S. T. Desai learned counsel who appeared for the respondents found it difficult to pursue the contention. We, however, propose to deal with the contention on merits.21. The taxing event under the statute is entry of scheduled goods in a local area for consumption, use or sale therein at the instance of a dealer. The expression dealer has the same meaning as assigned to it in clause (k) of s. 2 of Karnataka Sales Tax Act, 1957, which defines dealer to mean any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes amongst others, a casual trader. Sect ion 10(1) makes it obligatory upon every dealer whose total turnover in any year is not less than the specified sum to get himself registered under the Act. Sub-s. (2) carves out an exception to sub-s. (1) that notwithstanding anything contained in sub-s. (1) every casual trader dealing in goods mentioned in the Third Schedule or the Fourth Schedule irrespective of the quantum of his total turnover in such goods shall get himself registered. And in passing it may be mention ed that Schedule Three includes 12 items and Schedule Four includes seven items. In other words, casual trader who is included in the expression dealer in respect of the goods mentioned in the Third or Fourth Schedule, irrespective of his turn over, has to get himself registered. Therefore, it cannot be said that all petty dealers are excluded from the application of Karnataka Sales Tax Act. That apart, the taxing event under the impugned Act being entry of scheduled goods in a local area at the instance of a dealer, the volume or quantum of business of the dealer is not at all relevant. The situation now obtaining may be contrasted with the situation when octroi was levied. Octroi was payable by anyone irrespective of the fact whether he was a dealer in the goods or not, on goods which were liable to octroi when they were brought within the octroi limits. It was payable at the octroi limits where there used to be an office called octroi naka. This was found to be cumbersome and the present Act seeks to replace to some extent that infamous octroi. The noteworthy departure made by the Act is that now unlike every importer only a dealer dealing in the scheduled goods will have to pay the tax and that too not at the octroi limit but afterwards while submitting returns. It would be a case of wild imagination that a dealer in scheduled goods would bring within the local area scheduled goods in such a small quantity as to make maintenance of acc ounts a very difficult task as also a registration fee of Rs. 25 so heavy as to dub it an unreasonable restriction on his right to carry on trade or commerce. Only three items are included in scheduled goods and it is legitimate to believe that a dealer not dealing in either of the scheduled goods would not be required to get himself registered. And if he is going to deal in the goods his turnover would not be so small in scheduled goods as to make maintenance of accounts and payment of registration fee of Rs. 25 so disproportionately heavy as to render it as an unreasonable restriction on his right to carry on trade.22. Looking at the matter from a slightly different angle it must be confessed that if the contention of the respondents were to be upheld it would provide a fruitful source for evasion of tax. If petty dealers are to be excluded some criterion will have to be provided relatable to his turnover in scheduled goods for classifying who are petty dealers. That turnover will have to be kept reasonably high to make it rational but in that event the big registered dealer can always conveniently defeat the tax by bringing into the local area scheduled goods in the name of such petty dealer. It would be an incentive to a big registered dealer to set up a number of petty dealers and import scheduled goods into local area in the name of those petty dealers. To avoid any such contingency, if the tax is levied on the entry of scheduled goods in the local area at the hands of a dealer irrespective of his turnover a potential source of evasion can be checkmated. Viewed from either angle, non-exemption of petty dealers from the operation of the Act does not lead to the conclusion that the impugned legislation constitutes unreasonable restrictions on the fundamental right of the petty dealers to carry on their trade or business. The High Court was, therefore, in our opinion, in error in striking down the impugned legislation on the ground that the Act imposes unreasonable restrictions on the fundamental right of the petty dealers to carry on their trade.23. | 1[ds]There is aanswer to the contention that upon a literal grammatical construction of s. 3 the State has no choice in the matter of selecting local areas and that choice is limited to specifying rates but after choosing rates all local areas will have to be covered for the levy of tax. It is easy to read the section with a pause and punctuation after the word ad valorem so that the expression as may be specified by the State Government would qualify both the expressions local area and such rate. This would be clear from the fact that the last expression in the section different rates may be specified for different local areas would be an adjectival clause to the word rate so that the power to choose and specify different rates is not implicit in the words such rate but in the expression different rates may be specified for different local areas. Thus an express power of choosing and specifying different rates subject to maximum for different local areas is conferred on the St ate Government not by the expression such rate but by the expression rates with the adjectival clause different rates may be specified for different local areas. It was, therefore, not necessary to qualify the expression such rate again by the expression as may be specified by the State Government because that is covered by the express power conferred by the expression different rates may be specified for different local areas. In approaching the matter from this angle the expression as may be specified by the State Government would qualify the expression local area and this construction would be further reinforced by use of Article a prefixing local area meaning thereby not every local area but any lo cal area. In this connection reference may be made with advantage to In re. Sankers; ex parte Sergeant, wherein the expression under the hand of the Judge of a county court came up for construction. The construction canvassed for was that a county court would not mean any county court but the country court having jurisdiction in the matter. Repelling this construction the Court, after ascertaining the object of the legislation, held that a county court would mean any county court , an approach dictated by strict grammaticalif, therefore, a literal grammatical construction were to be adopted, on a proper reading o f the section power is conferred on the State Government by s. 3 not only to specify different rates for different areas but also to specify local areas entry into which of scheduled goods would provide the taxing event. There is thus a power to choose and specify local areas as well as choose and specify rate of taxation subject to maximum prescribed in theour reading of the section is not correct, there is another way of approaching the matter. It cannot be gains aid that the State Government is empowered to specify the different rates of tax not exceeding the maximum in respect of different scheduled goods for different local areas. This implies that even though the taking event is entry of scheduled goods in a local area, nonetheless different rates may be prescribed for different local areas and express power in that behalf is conferred on the Government by providing in section 3 that different rates may be specified for differen t local areas. If at this stage the definition of local area is recalled which means an area in a city governed by the Karnataka Municipalities Act or a municipal corporation governed by the Karnataka Municipal Corporations Act it would immediately appear that local areas vary immensely both in dimension, population, industrial growth, economic development and scale and kind of municipal service rendered. One has to keep in view a local area like Bangalore City, a highly industrially advanced capital city of Karnataka and a small municipality having a population of 10, 000. Now, if the expression a local area in s. 3 is interpreted to mean every local area as contended on behalf of the respondents, before any tax can be levied under s. 3 it would be obligatory on State Government to levy tax on entry of scheduled goods in every local area in Karnataka State for consumption, use or sale therein. The contention thus is that coverage of all local areas for levy o f tax would provide outside maximum limit of power under s. 3. The question is: Is it a minimum condition for exercise of power ? If it is, the rates of tax will have to vary considerably in direct relation to the local area for which the rate is being prescribed. It would be unjust and inequitable to levy tax on entry of goods at the same rate for such local area as Bangalore Municipal Corporation and a small municipal area, the two local areas being uncomparable with regard to area, population, industrial growth and consumption of such scheduled goods in the area. Now, if the impact of the tax is to be equitable keeping in view cost of its collection, a tax levied at such a small rate as one paise for goods worth Rs. 100 ad valorem for a small local area and 2% ad valorem for such industrially developed local area like Bangalore Corporation, it would make nonsense of the levy apart from the uneconomic outcome keeping in view the administrative cost of collection. If the Government is obliged on the construction canvassed on behalf of the respondents to encompass all local areas for the purpose of levying tax under the statute, the rates would have to be varied so much to avoid the evil of making the impost unjust and if the rates have to be varied from area to area the administrative cost in smaller areas with lower rates and negligible entry of scheduled goods in such area would make the tax wholly uneconomic. It must, therefore, logically follow that choice to select local area is a necessary concomitant of a choice to select rates, which power is admittedly conferred on the State Government. Purpose underlying the statute, namely, to provide financial assistance to the municipalities would be better effectuated if the tax realised considerably outweighs the administrative cost involved in collecting the tax. And it is a well known canon of construction that the purpose underlying the statute would provide a reliable external aid for proper construction because the Court would adopt that construction which would effectuate theHigh Court unfortunately approached the matter from the standpoint of literal grammatical construction of the section overlooking the object underlying the Act, the historical background which the High Court itself had noticed, and holding that unless the section isas understood by the High Court, the State Government had no power to pick and choose localys a presumption of constitutionality of a statute. If the language is rather not clear and precise as it ought to be, attempt of the Court is to ascertain the intention of the legislature and put that construction which would lean in favour of the constitutionality unless such construction is wholly untenable. However, where one has to look at a section not very well drafted but the object behind the legislation and the purpose of enacting the same is clearly discernible, the Court cannot hold its hand and blame the draftsman and chart an easy course of striking down the statute. In such a situation the Court should be guided by a creative approach to ascertain what was intended to be done by the legislature in enacting the legislation and so cons true it as to give force and life to the intention of the legislature. This is not charting any hazardous course but is amply borne out by an observation worth reproducing in extensoin Seaford Court Estates Ltd. v.was also observed that legislature which is competent to levy a tax must inevitably be given full freedom to determine which articles should be taxed, in what manner and at what rate. It would, therefore, be idle to contend that a State must tax everything in order to tax something. In tax matters, "the State is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonably" (see Willis on Constitutional Law, p.question, therefore, is, whether a tax of a certain kind can be levied on entry of goods in certain local areas, the classification of local areas, if found to be reasonable, the levy of tax would not be invalid on the ground that choosing certain areas only excluding some others would violate Article 14. Whether in this case the classification is reasonable would be presently examined but the contention that if the State Government is granted a choice in the matter of selection of local area, ipso facto, the statute would be unconstitutional as being violative of Art. 14, must beorder to ascertain whether the classification of local areas for the purposes of levy of tax is reasonable or not, a reference may be made to the impugned notification. Table annexed to the notification shows in all 27 local areas selected for levy of tax. They are again divided into three groups, A, B and C for selecting rates to be levied on different scheduled goods. A mere glance at the local areas selected and those according to the petitioner excluded, viz., areas within the jurisdiction of various Gram Panchayats would bring in bold relief that population criterion appears to have been adopted in selecting local areas for levy of tax. Does population criterion provide a reasonable basis for classificationa tax levied on entry of goods in the area ? It would be undeniable that population basis would provide a reasonable criterion for selecting local areas for the purpose of levy tax simultaneously excluding those which do not answer the population criterion. One unquestionable element scientifically established about a taxing statute is that the yield from the tax must be sufficiently in excess of cost of collection so that the tax which is levied for augmenting public finances to be utilised for public good would be productive. Where the cost of administrative machinery required to be set up for collecting tax is either marginally lower or equal or marginally higher than the yield from the tax, the measure would be uneconomic if not counterproductive. Now, if the tax in this case is levied on the entry of scheduled goods in local areas, the yield would be directly proportionate to the consumption of the good s in local areas and the consumption of goods is directly related to the population within the local area. Viewed from this angle, population criterion would provide a reasonable basis for classification for selectively levying the tax by choosing local area and by specifying different rates so as to make the tax productive. Therefore, there is no substance in the contention that the classification in this case was unreasonable. The High Court was accordingly in error in holding that s. 3 did not permit the State Government to pick and choose local areas for the levy of tax and that levy of tax under s. 3 in all local areas within Karnataka State was a minimum condition for exercise of the power under s. 3. The contention must , accordingly bethe contention it was said that the abolished octroi would have been less oppressive in its application than the tax under the impugned legislation falling on petty dealers. W hat appealed to the High Court was that if a petty dealer brought within the local area scheduled goods of the value of Rs. 5 for consumption, use or sale therein, he is to get himself registered after paying the registration fee , maintain accounts for his dealings in such goods and submit monthly and annual returns and to appear before the assessing authority when called upon to do so. The High Court thereafter contrasted the position of a dealer under the Karnataka Sales Tax Act, 1957, and observed that a dealer whose total turnover is less than Rs. 25, 000 was not liable to pay sales tax and one whose turnover was less than Rs. 10, 000 was not required to get registered, to maintain accounts or to submit returns. The High Court also found the registration fee of Rs. 25 prescribed under the rules, the liability to maintain accounts in the manner prescribed and to submit monthly and yearly returns as constituting unreasonable restriction s on the fundamental right of the petty dealers to carry on their trade orthe judgment does not show that learnedwho appeared for the State raised such an objection to the entertaining of the contention on behalf of the petitioners by the High Court. Not only has the High Court permitted the contention to be raised but accepted the same. In fairness to the petitioners it would be unjust to shut out the contention on this technical ground, though we must note that Mr. S. T. Desai learned counsel who appeared for the respondents found it difficult to pursue the contention. We, however, propose to deal with the contention ontaxing event under the statute is entry of scheduled goods in a local area for consumption, use or sale therein at the instance of a dealer. The expression dealer has the same meaning as assigned to it in clause (k) of s. 2 of Karnataka Sales Tax Act, 1957, which defines dealer to mean any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes amongst others, a casual trader. Sect ion 10(1) makes it obligatory upon every dealer whose total turnover in any year is not less than the specified sum to get himself registered under the Act.(2) carves out an exception to(1) that notwithstanding anything contained in(1) every casual trader dealing in goods mentioned in the Third Schedule or the Fourth Schedule irrespective of the quantum of his total turnover in such goods shall get himself registered. And in passing it may be mention ed that Schedule Three includes 12 items and Schedule Four includes seven items. In other words, casual trader who is included in the expression dealer in respect of the goods mentioned in the Third or Fourth Schedule, irrespective of his turn over, has to get himself registered. Therefore, it cannot be said that all petty dealers are excluded from the application of Karnataka Sales Tax Act. That apart, the taxing event under the impugned Act being entry of scheduled goods in a local area at the instance of a dealer, the volume or quantum of business of the dealer is not at all relevant. The situation now obtaining may be contrasted with the situation when octroi was levied. Octroi was payable by anyone irrespective of the fact whether he was a dealer in the goods or not, on goods which were liable to octroi when they were brought within the octroi limits. It was payable at the octroi limits where there used to be an office called octroi naka. This was found to be cumbersome and the present Act seeks to replace to some extent that infamous octroi. The noteworthy departure made by the Act is that now unlike every importer only a dealer dealing in the scheduled goods will have to pay the tax and that too not at the octroi limit but afterwards while submitting returns. It would be a case of wild imagination that a dealer in scheduled goods would bring within the local area scheduled goods in such a small quantity as to make maintenance of acc ounts a very difficult task as also a registration fee of Rs. 25 so heavy as to dub it an unreasonable restriction on his right to carry on trade or commerce. Only three items are included in scheduled goods and it is legitimate to believe that a dealer not dealing in either of the scheduled goods would not be required to get himself registered. And if he is going to deal in the goods his turnover would not be so small in scheduled goods as to make maintenance of accounts and payment of registration fee of Rs. 25 so disproportionately heavy as to render it as an unreasonable restriction on his right to carry onat the matter from a slightly different angle it must be confessed that if the contention of the respondents were to be upheld it would provide a fruitful source for evasion of tax. If petty dealers are to be excluded some criterion will have to be provided relatable to his turnover in scheduled goods for classifying who are petty dealers. That turnover will have to be kept reasonably high to make it rational but in that event the big registered dealer can always conveniently defeat the tax by bringing into the local area scheduled goods in the name of such petty dealer. It would be an incentive to a big registered dealer to set up a number of petty dealers and import scheduled goods into local area in the name of those petty dealers. To avoid any such contingency, if the tax is levied on the entry of scheduled goods in the local area at the hands of a dealer irrespective of his turnover a potential source of evasion can be checkmated. Viewed from either angle,of petty dealers from the operation of the Act does not lead to the conclusion that the impugned legislation constitutes unreasonable restrictions on the fundamental right of the petty dealers to carry on their trade or business. The High Court was, therefore, in our opinion, in error in striking down the impugned legislation on the ground that the Act imposes unreasonable restrictions on the fundamental right of the petty dealers to carry on theirone stage there was some controversy whether a tax law was within the inhibition of Part XIII of the Constitution, but this controversy is no more res integra and it has been set at rest by the majority view in Atiabari Tea Co. Ltd. v. The State of Assam &Ors., Gajendragadkar, J. speaking for the majority, observed that the intrinsic evidence furnished by some of the Articles of Part XIII shows that taxing laws are not excluded from the operation of Art. 301 which means that tax laws can and do amount to restrictions freedom from which is guaranteed to trade under the saidthe contention that all taxes should be governed by Art. 301 whether or not their impact on trade is immediate or mediate, direct or remote, was negatived. The majority view in Atiabari Tea Co. Ltd. case (Supra) wasand affirmed in The Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan &Ors. Das,law was thus further clarified by pointing out that all taxes should and could not be prohibited by Art. 301 and must of necessity for their sustenance seek the coverage of Art. 304. If a measure is shown to be regulatory or the tax imposed is compensatory in character meaning the tax instead of hampering trade or commerce would facilitate the same, it would be immune from a challenge under Art, 301. In other words, if the tax is shown to be compensatory in character irrespective of the fact whether i t is saved by Art. 304 or not it does not come within the inhibition of Art. 301. Accordingly, if validity of a tax law is challenged on the ground that it violates freedom ofcommerce, trade and intercourse, guaranteed by Art . 301, the contention may be repelled by showing (i) that the tax is compensatory in character as explained in The Automobile Transport (Rajasthan) Ltd. case (Supra); or (ii) that it satisfies the requirements of Art.a conspectus of these decisions it appears well settled that if a tax is compensatory in character it would be immune from the challenge under Art. 301. If on the other hand the tax is not shown to be compensatory in character it would be necessary for the p arty seeking to sustain the validity of the tax law to show that the requirements of Art. 304 have beenState did not attempt in the High Court to sustain the validity of the impugned tax law on the submission that it was compensatory in character. No attempt was made to establish that the dealers in scheduled goods in a local area would be availing of municipal services and municipal services can be efficiently rendered if the municipality charged with a duty to render services has enough and adequate funds and that the impugned tax was a measure for compensating the municipalities for the loss of revenue or for augmenting its finances. As such a stand was not taken, it is not necessary for us to examine whether the tax is compensatory in304 lifts the em bargo placed on the legislative power of State to enact law which may infringe the freedom oftrade and commerce if its requirements are fulfilled. Article 304(a) imposes a restriction on the power of legislature of a State to levy tax which may be discriminatory in character by according discriminatory treatment to goods manufactured in the State and identical goods imported from outside the State. The effect of Art. 304(a) is to treat imported goods on the same basis a s goods manufactured or produced in a State. This article further enables the State to levy tax on such imported goods in the same manner and to the same extent as may be levied on the goods manufactured or produced inside the State. If a State tax law accords identical treatment in the matter of levy and collection of tax on the goods manufactured within the State and identical goods imported from outside the State, Art. 304(a) would be complied with.ing assumption in Art. 304(a) that such a tax when levied within the constraints of Art. 304(a) would not be violative of Art. 301 and State legislature has the power to levy suchunder the impugned legislation would be levied on scheduled goods either manufactured or produced within Karnataka State or imported from outside on their entry in a local area. Thus, this tax isin that it does not discriminate between scheduled goods manufactured or produced within Karnataka Stat e or those imported from outside. And the microscopic discrimination relied upon by the respondents that there is differential treatment accorded to goods produced within a local area and those imported from outside the local area is hardly relevant for the purpose of Art. 304(a). The High Court was accordingly right in concluding that the impugned tax satisfies the requirements of Art.order to satisfy the requirements of Art. 304(b) it must be shown that the restrictions imposed by the tax law onfreedom of trade and commerce are reasonable and are in public interest as also the bill for the purpose of levy of such tax has been introduced or moved in the State legislature with the previous sanction of the President. To the extent the impugned tax is levied on the entry of goods in a local area it cannot be gainsaid that its immediate impact would be on movement of goods and the measure would fall within the inhibition of Art. 301. Can it, however, be said that this tax imposes restrictions which in the facts and circumstances of the case could not be said to be reasonable? It was cont ended on behalf of the respondents that the tax not being single point tax it would impose a heavy burden and a very burden of tax would certainly constitute unreasonable restriction on the freedom of trade andthe tax would have to be paid every time when scheduled goods enter a local area. In other words, it is not a single point tax and, therefore, if some scheduled goods successively enter different local areas for consumption, use or sale therein, there would be multiple levy. But no attempt was made to substantiate this charge by showing as to how goods are taken from one local area to another local area to third local area for successive sales because if they are taken for consumption or use, there is no question of taking the scheduled goods from one local area to another local area. It is, therefore, difficult to conceive a situation realistically that the impost would be very heavy so as to make it unreasonable. The High Court negatived the contention and in our opinion rightly observing that the petitioners have not been able to show that the burden of the tax was so heavy as to constitute unreasonable restriction on the freedom of trade and commerce. In this connection, however, reliance was placed on the decision of this Court in Kalyani Stores v. State of Orissa &Ors. In that case the State enhanced the duty in respect of foreign liquors from Rs. 40 to Rs. 70 per L.P. gallon and this levy was challenged on the ground that it infringed the guarantee of Art. 301. The State attempted to save the levy by contending that it was saved by Art.has been pointed out earlier, the levy was to compensate the loss suffered by abolition of octroi. without a demur. After removing the obnoxious features of octroi a very modest impost is levied on entry of goods in a local area and that too not for further augmenting finances of the municipalities but for compensating the loss suffered by the abolition of octroi is certainly a levy in public interest. As has been repeatedly observed by this Court, the taxes generally are imposed for raising public revenue for better governance of the country and for carrying out welfare activities of our welfare State envisaged in the constitution and, therefore, even if a tax to some extent imposes an economic impediment to the activity taxed, that by itself is not sufficient either to stigmatise the levy as unreasonable or not in publicproviso imposes an obligation to obtain the Presidential sanction before introducing the bill or amendment for the purpose of clause (b) of Art. 304 in the legislature of a State. It cannot be gainsaid that Presidential sanction was not obtained before introducing the bill which was ultimately enacted into the impugned Act but after the bill was enacted into an Act the same was submitted to the President for his assent and it is common ground that the President has accorded his assent. If prior presidential sanction is a sine qua non, the requirement of the proviso is not satisfied but in this context it would be advantageous to refer to Art. 255 which provides that no Act of Parliament or of the Legislature of a State and no provision in any such Act shall be invalid by reason only that so me recommendation or previous sanction required by the Constitution was not given if assent to that Act was given by the President. Now, in this case it is common ground that the President did accord his sanction to the impugned Act. Therefore, th e requirement of the proviso issum up, the impugned tax is not discriminatory in character as envisaged by Art. 304(a) and it does impose restrictions but the restrictions imposed are reasonable and in public interest and the Ac t subsequently having received the assent of the President, the proviso to Art. 304(b) is complied with and, therefore, the impugned Act is saved by Art. 304 and could not be struck down on the ground that it was violative of Art. 301. The contention must accordingly becontention overlooks the specific guideline to be found in t he charging section itself. The taxing event is the entry of scheduled goods into a local area. The tax becomes payable on the entry of scheduled goods in a local area. Therefore, the price of the scheduled goods at the time of entry paid by t he dealer who is the importer of goods within the scheduled area would be the ad valorem price on the basis of which tax would be computed. No subsequent rise or fall in price has any relevance to the computation of the tax. The charging section says that the tax shall be levied and collected on the entry of scheduled goods in a local area at specified percentage not exceeding two per cent ad valorem. Therefore, the price of the scheduled goods at the time when the tax becomes chargeable irrespective of the fact that it would be computed at a later date when the dealer submits his return as required by the other provisions of the Act, would be the price for computation of tax. And there is no ambiguity or any vagueness in t his behalf. There is thus specific guideline in the charging section itself for taking into account the price according to which tax would be computed. The High Court negatived this contention by observing that it would be open to the dealer to choose either the sale price or the purchase price whichever is favourable to him for computation of his liability to tax. This approach overlooks the specific language of s. 3 which clearly indicates what price is to be taken into account for computing the tax. When the goods are brought within the local area they have a certain price. The price may be the price which the importer of goods has paid before bringing the goods within the local area. Even if the dealer is the manufacturer of goods at a place outside the local area and brings the goods within the local area he must have determined the price of the goods. Therefore, the dealer has some specific price of the scheduled goods which are being brought within the local area at the time of entry in the local area and the entry being the taxing event that would be the price which alone can be taken into account for computing the tax ad valorem. Therefore, we find it difficult to agree with the reasoning adopted by the High Court in rejecting the contention but for the reasons hereinabove mentioned the contention is devoid of merits and accordingly it must be negatived. 846 | 1 | 6,262 | 5,411 | ### 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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registered, to maintain accounts or to submit returns. The High Court also found the registration fee of Rs. 25 prescribed under the rules, the liability to maintain accounts in the manner prescribed and to submit monthly and yearly returns as constituting unreasonable restriction s on the fundamental right of the petty dealers to carry on their trade or business.20. Learned Attorney-General urged that this contention was no where to be found in the petition filed by the petitioners in the High Court and, therefore, the High Court was in error in entertaining the contention. Unfortunately, the judgment does not show that learned Advocate-General who appeared for the State raised such an objection to the entertaining of the contention on behalf of the petitioners by the High Court. Not only has the High Court permitted the contention to be raised but accepted the same. In fairness to the petitioners it would be unjust to shut out the contention on this technical ground, though we must note that Mr. S. T. Desai learned counsel who appeared for the respondents found it difficult to pursue the contention. We, however, propose to deal with the contention on merits.21. The taxing event under the statute is entry of scheduled goods in a local area for consumption, use or sale therein at the instance of a dealer. The expression dealer has the same meaning as assigned to it in clause (k) of s. 2 of Karnataka Sales Tax Act, 1957, which defines dealer to mean any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes amongst others, a casual trader. Sect ion 10(1) makes it obligatory upon every dealer whose total turnover in any year is not less than the specified sum to get himself registered under the Act. Sub-s. (2) carves out an exception to sub-s. (1) that notwithstanding anything contained in sub-s. (1) every casual trader dealing in goods mentioned in the Third Schedule or the Fourth Schedule irrespective of the quantum of his total turnover in such goods shall get himself registered. And in passing it may be mention ed that Schedule Three includes 12 items and Schedule Four includes seven items. In other words, casual trader who is included in the expression dealer in respect of the goods mentioned in the Third or Fourth Schedule, irrespective of his turn over, has to get himself registered. Therefore, it cannot be said that all petty dealers are excluded from the application of Karnataka Sales Tax Act. That apart, the taxing event under the impugned Act being entry of scheduled goods in a local area at the instance of a dealer, the volume or quantum of business of the dealer is not at all relevant. The situation now obtaining may be contrasted with the situation when octroi was levied. Octroi was payable by anyone irrespective of the fact whether he was a dealer in the goods or not, on goods which were liable to octroi when they were brought within the octroi limits. It was payable at the octroi limits where there used to be an office called octroi naka. This was found to be cumbersome and the present Act seeks to replace to some extent that infamous octroi. The noteworthy departure made by the Act is that now unlike every importer only a dealer dealing in the scheduled goods will have to pay the tax and that too not at the octroi limit but afterwards while submitting returns. It would be a case of wild imagination that a dealer in scheduled goods would bring within the local area scheduled goods in such a small quantity as to make maintenance of acc ounts a very difficult task as also a registration fee of Rs. 25 so heavy as to dub it an unreasonable restriction on his right to carry on trade or commerce. Only three items are included in scheduled goods and it is legitimate to believe that a dealer not dealing in either of the scheduled goods would not be required to get himself registered. And if he is going to deal in the goods his turnover would not be so small in scheduled goods as to make maintenance of accounts and payment of registration fee of Rs. 25 so disproportionately heavy as to render it as an unreasonable restriction on his right to carry on trade.22. Looking at the matter from a slightly different angle it must be confessed that if the contention of the respondents were to be upheld it would provide a fruitful source for evasion of tax. If petty dealers are to be excluded some criterion will have to be provided relatable to his turnover in scheduled goods for classifying who are petty dealers. That turnover will have to be kept reasonably high to make it rational but in that event the big registered dealer can always conveniently defeat the tax by bringing into the local area scheduled goods in the name of such petty dealer. It would be an incentive to a big registered dealer to set up a number of petty dealers and import scheduled goods into local area in the name of those petty dealers. To avoid any such contingency, if the tax is levied on the entry of scheduled goods in the local area at the hands of a dealer irrespective of his turnover a potential source of evasion can be checkmated. Viewed from either angle, non-exemption of petty dealers from the operation of the Act does not lead to the conclusion that the impugned legislation constitutes unreasonable restrictions on the fundamental right of the petty dealers to carry on their trade or business. The High Court was, therefore, in our opinion, in error in striking down the impugned legislation on the ground that the Act imposes unreasonable restrictions on the fundamental right of the petty dealers to carry on their trade.23.
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no question of taking the scheduled goods from one local area to another local area. It is, therefore, difficult to conceive a situation realistically that the impost would be very heavy so as to make it unreasonable. The High Court negatived the contention and in our opinion rightly observing that the petitioners have not been able to show that the burden of the tax was so heavy as to constitute unreasonable restriction on the freedom of trade and commerce. In this connection, however, reliance was placed on the decision of this Court in Kalyani Stores v. State of Orissa &Ors. In that case the State enhanced the duty in respect of foreign liquors from Rs. 40 to Rs. 70 per L.P. gallon and this levy was challenged on the ground that it infringed the guarantee of Art. 301. The State attempted to save the levy by contending that it was saved by Art.has been pointed out earlier, the levy was to compensate the loss suffered by abolition of octroi. without a demur. After removing the obnoxious features of octroi a very modest impost is levied on entry of goods in a local area and that too not for further augmenting finances of the municipalities but for compensating the loss suffered by the abolition of octroi is certainly a levy in public interest. As has been repeatedly observed by this Court, the taxes generally are imposed for raising public revenue for better governance of the country and for carrying out welfare activities of our welfare State envisaged in the constitution and, therefore, even if a tax to some extent imposes an economic impediment to the activity taxed, that by itself is not sufficient either to stigmatise the levy as unreasonable or not in publicproviso imposes an obligation to obtain the Presidential sanction before introducing the bill or amendment for the purpose of clause (b) of Art. 304 in the legislature of a State. It cannot be gainsaid that Presidential sanction was not obtained before introducing the bill which was ultimately enacted into the impugned Act but after the bill was enacted into an Act the same was submitted to the President for his assent and it is common ground that the President has accorded his assent. If prior presidential sanction is a sine qua non, the requirement of the proviso is not satisfied but in this context it would be advantageous to refer to Art. 255 which provides that no Act of Parliament or of the Legislature of a State and no provision in any such Act shall be invalid by reason only that so me recommendation or previous sanction required by the Constitution was not given if assent to that Act was given by the President. Now, in this case it is common ground that the President did accord his sanction to the impugned Act. Therefore, th e requirement of the proviso issum up, the impugned tax is not discriminatory in character as envisaged by Art. 304(a) and it does impose restrictions but the restrictions imposed are reasonable and in public interest and the Ac t subsequently having received the assent of the President, the proviso to Art. 304(b) is complied with and, therefore, the impugned Act is saved by Art. 304 and could not be struck down on the ground that it was violative of Art. 301. The contention must accordingly becontention overlooks the specific guideline to be found in t he charging section itself. The taxing event is the entry of scheduled goods into a local area. The tax becomes payable on the entry of scheduled goods in a local area. Therefore, the price of the scheduled goods at the time of entry paid by t he dealer who is the importer of goods within the scheduled area would be the ad valorem price on the basis of which tax would be computed. No subsequent rise or fall in price has any relevance to the computation of the tax. The charging section says that the tax shall be levied and collected on the entry of scheduled goods in a local area at specified percentage not exceeding two per cent ad valorem. Therefore, the price of the scheduled goods at the time when the tax becomes chargeable irrespective of the fact that it would be computed at a later date when the dealer submits his return as required by the other provisions of the Act, would be the price for computation of tax. And there is no ambiguity or any vagueness in t his behalf. There is thus specific guideline in the charging section itself for taking into account the price according to which tax would be computed. The High Court negatived this contention by observing that it would be open to the dealer to choose either the sale price or the purchase price whichever is favourable to him for computation of his liability to tax. This approach overlooks the specific language of s. 3 which clearly indicates what price is to be taken into account for computing the tax. When the goods are brought within the local area they have a certain price. The price may be the price which the importer of goods has paid before bringing the goods within the local area. Even if the dealer is the manufacturer of goods at a place outside the local area and brings the goods within the local area he must have determined the price of the goods. Therefore, the dealer has some specific price of the scheduled goods which are being brought within the local area at the time of entry in the local area and the entry being the taxing event that would be the price which alone can be taken into account for computing the tax ad valorem. Therefore, we find it difficult to agree with the reasoning adopted by the High Court in rejecting the contention but for the reasons hereinabove mentioned the contention is devoid of merits and accordingly it must be negatived. 846
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U.P. State Bridge Corporation Ltd. Vs. U.P.Rajya Setu Nigam S.Karmachari Sangh | strike cannot amount to abandonment of service for the purpose of Clause L-2.12 of the Standing Orders (CSO). But was there a strike at all? Or was it mass absenteeism unconnected with the terms and conditions of service? 21. Besides the submission that a person on illegal strike does not abandon his job is erroneous. An illegal "strike cannot by definition be "authorised absence". It would be contradiction in terms. We may also draw support from Section 25-B which defines "continuous service" as "uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman". The specific exclusion of persons on illegal strike plainly means that the period a person is on illegal strike does not amount to service. Different considerations would not doubt prevail where the strike is legal. Workers on strike continue to be n service although they may have ceased work. It the strike is a legal one such cessation of work or refusal to continue would be absence authorised by law. Under CSO L-2.12 a presumption is to be drawn against an employee if such employee is unauthorisedly absent. Clearly, a person on illegal strike and a person on legal strike are both "absent", but the absence of the first is unauthorised and the second is not. CSO L-2.12 raises a presumption against the employee and it is for the employee to rebut that presumption by adducing the evidence. It is, therefore, imperative that the factual basis is determined by the appropriate forum. In any event the decisions cited by he learned counsel for the respondent as noted earlier, are factually distinguishable. In Express Newspapers (supra), there was no condition of service similar to Certified Standing Order L-2.12. The fact of strike was also not in dispute. The Management had issued notice terming the strike as unauthorised abandonment. In other words, abandonment was pleaded as a fact on the basis of the strike. The contention of the employer was that there was no order of termination of service by the employer but a relinquishment of service by the workmen. The submission was not accepted because "the respondents by going on strike clearly indicated that they wanted to continue in their employment but were only demanding better terms. Such an attitude, far from indicating abandonment of employment, emphasized the fact that the employment continued as far as they were concerned. The management could not, by imposing a new term of employment, unilaterally convert the absence from duty of striking employees into abandonment of their employment". 22. The fact of strike was also admitted in G.T. Lad (supra). Here again there was no condition of service similar to CSO L-2.12. The Management had issued a notice calling upon the workmen to report within a specified period otherwise it would be construed as an abandonment. The workmen failed to report within the aforesaid period. The Management struck out the names of the workers from the rolls on the ground that the workmen were not interested in service and had totally abandoned it. This Court held that the abandonment was not a question of fact which was required to be proved. Where the only evidence was absence because of strike, there was no abandonment. It was also held, following Express Newspaper (supra) that it was not open to the company to introduce such changed terms and conditions of service pending an industrial dispute. 23. D.K. Yadav (supra) is an authority for the proposition that the principle of natural justice would have to be read in the Standing Orders. That was a case where there was a standing order similar to CSO L-2.12 except that 8 days margin was granted with which the workman was required to return and satisfactorily explain the reasons for his absence or inability to return after the expiry of leave. This view was reiterated in the later decision of this Court in Lakshmi Precision Screws Ltd. V. Ram Bhagat 2002 (6) SCC 552 where it was held that the element of natural justice was an in-built requirement of the Standing Orders. In this case, the appellant-Corporation had issued two notices calling upon the workmen represented by the respondent to return to duty. The workmen did not respondent to either of the notices. As we have noted it was not pleaded that the advertisement did not sufficiently comply with the principles of natural justice. The notice was issued giving an opportunity to the respondent to show cause why the presumption should not be drawn under CSO L-2.12. The respondent did not show cause. In the circumstances the Management drew the presumption in terms of the CSO. 24. The respondent said that the notice was invalid because it did not otherwise comply with the CSO L-2.12 because of the shortening of the period of absence. This was not an issue raised at any state. In any event, we do not see how the notice is not in compliance with the Certified Standing Orders as quoted earlier. 25. The final submission of the respondent was that the UPIDA provided for penalty after a departmental enquiry, in respect of the workman who may have gone on illegal strike and, therefore, there could be no termination of services on account of illegal strike. The submission is unacceptable as we have said there is no proof that the respondents were on strike at all. Besides, merely because the action is punishable does not mean that the consequence of an unauthorised absence is not available under the Certified Standing Orders if it so specifically provides. 26. In the circumstances, we have no hesitation in setting aside the decision of the High Court in dismissing the writ petition. This order will, however, not preclude the respondent-Union if it is otherwise so entitled to raise an industrial dispute under the UPIDA. | 1[ds]In the present case, the nature of the employment of the workmen was in dispute. According to the appellant, the workmen had been appointed in connection with a particular project and there was no question of absorbing them or their continuing in service once the project was completed. Admittedly, when the matter was pending before the High Court, there were 29 such projects under execution or awarded. Accordingly to the respondent-workmen, they were appointed as regular employees and they cited orders by which some of them were transferred to various projects at various places. In answer to this the appellants said that although the appellant corporation tried to accommodate as many daily wagers as they could in any new project, they were always under compulsion to engage local people of the locality where work was awarded. There was as such no question of transfer of any workman from one project to another. This was an issue which should have been resolved on the basis of evidence led. The Division Bench erred in rejecting the appellants submission summarily as also in placing the onus on the appellant to produce the appointment letters of thewas also a dispute as to the nature of the absence of the respondent-workmen. Correspondence said to have been exchanged between the parties with regard to the demands raised by the respondent-Union has been relied upon by the respondent in support of the submission that the absence was really on account of a strike. It is also submitted that the correspondence indicated that notice of the strike had been given. To counter the statement made in the writ petition by the respondent that the workmen were on strike, the appellants had said that no notice of strike had been given and, therefore, the strike, if any, was illegal. Significantly, the High Court has not relied upon the correspondence nor has it come to any decision on the question whether the strike was illegal or legal. In fact the High Court has proceeded on the basis that it was the accepted case that there was no notice given by the workmen that they were on strike. It cannot, therefore, be said, without more, that the absence of respondent-workmen from work was because they were on strike.16. The High Court incorrectly applied the provisions of Section 22 of the Industrial Disputes Act, 1947 to hold that no notice of strike was necessary. It is conceded by the respondent that the operative Act was the UPIDA which differs materially, in this connection, with the Industrial Disputes Act. Under Section 22 of the Industrial Disputes Act, a notice of strike is required to be given, as held by the High Court, only in the case of any public utility service and the appellant corporation is not a public utility service. However, under Section 65 of the UPIDA the notice of strike is required to be given in respect of an industrial establishment. It is not argued on behalf of the respondent that the appellant-Corporation is not an industrial establishment. Whatever the legal consequences of not giving of such notice may be, it cannot be said in the circumstances that the employees were admittedly on strike as a matter ofjudgment of the High Court cannot be sustained on the ground of alternative remedy. When it was drawn to the attention of the High Court that a previous writ petition raising the same issue had been dismissed on the ground of the existence of an adequate alternative remedy, the High Court should not have continued to dispose of the matter itself under Article 226 and in effect set aside the decision in the previous writthe circumstances, we have no hesitation in setting aside the decision of the High Court in dismissing the writ petition. This order will, however, not preclude the respondent-Union if it is otherwise so entitled to raise an industrial dispute under the UPIDA. | 1 | 4,702 | 709 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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strike cannot amount to abandonment of service for the purpose of Clause L-2.12 of the Standing Orders (CSO). But was there a strike at all? Or was it mass absenteeism unconnected with the terms and conditions of service? 21. Besides the submission that a person on illegal strike does not abandon his job is erroneous. An illegal "strike cannot by definition be "authorised absence". It would be contradiction in terms. We may also draw support from Section 25-B which defines "continuous service" as "uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman". The specific exclusion of persons on illegal strike plainly means that the period a person is on illegal strike does not amount to service. Different considerations would not doubt prevail where the strike is legal. Workers on strike continue to be n service although they may have ceased work. It the strike is a legal one such cessation of work or refusal to continue would be absence authorised by law. Under CSO L-2.12 a presumption is to be drawn against an employee if such employee is unauthorisedly absent. Clearly, a person on illegal strike and a person on legal strike are both "absent", but the absence of the first is unauthorised and the second is not. CSO L-2.12 raises a presumption against the employee and it is for the employee to rebut that presumption by adducing the evidence. It is, therefore, imperative that the factual basis is determined by the appropriate forum. In any event the decisions cited by he learned counsel for the respondent as noted earlier, are factually distinguishable. In Express Newspapers (supra), there was no condition of service similar to Certified Standing Order L-2.12. The fact of strike was also not in dispute. The Management had issued notice terming the strike as unauthorised abandonment. In other words, abandonment was pleaded as a fact on the basis of the strike. The contention of the employer was that there was no order of termination of service by the employer but a relinquishment of service by the workmen. The submission was not accepted because "the respondents by going on strike clearly indicated that they wanted to continue in their employment but were only demanding better terms. Such an attitude, far from indicating abandonment of employment, emphasized the fact that the employment continued as far as they were concerned. The management could not, by imposing a new term of employment, unilaterally convert the absence from duty of striking employees into abandonment of their employment". 22. The fact of strike was also admitted in G.T. Lad (supra). Here again there was no condition of service similar to CSO L-2.12. The Management had issued a notice calling upon the workmen to report within a specified period otherwise it would be construed as an abandonment. The workmen failed to report within the aforesaid period. The Management struck out the names of the workers from the rolls on the ground that the workmen were not interested in service and had totally abandoned it. This Court held that the abandonment was not a question of fact which was required to be proved. Where the only evidence was absence because of strike, there was no abandonment. It was also held, following Express Newspaper (supra) that it was not open to the company to introduce such changed terms and conditions of service pending an industrial dispute. 23. D.K. Yadav (supra) is an authority for the proposition that the principle of natural justice would have to be read in the Standing Orders. That was a case where there was a standing order similar to CSO L-2.12 except that 8 days margin was granted with which the workman was required to return and satisfactorily explain the reasons for his absence or inability to return after the expiry of leave. This view was reiterated in the later decision of this Court in Lakshmi Precision Screws Ltd. V. Ram Bhagat 2002 (6) SCC 552 where it was held that the element of natural justice was an in-built requirement of the Standing Orders. In this case, the appellant-Corporation had issued two notices calling upon the workmen represented by the respondent to return to duty. The workmen did not respondent to either of the notices. As we have noted it was not pleaded that the advertisement did not sufficiently comply with the principles of natural justice. The notice was issued giving an opportunity to the respondent to show cause why the presumption should not be drawn under CSO L-2.12. The respondent did not show cause. In the circumstances the Management drew the presumption in terms of the CSO. 24. The respondent said that the notice was invalid because it did not otherwise comply with the CSO L-2.12 because of the shortening of the period of absence. This was not an issue raised at any state. In any event, we do not see how the notice is not in compliance with the Certified Standing Orders as quoted earlier. 25. The final submission of the respondent was that the UPIDA provided for penalty after a departmental enquiry, in respect of the workman who may have gone on illegal strike and, therefore, there could be no termination of services on account of illegal strike. The submission is unacceptable as we have said there is no proof that the respondents were on strike at all. Besides, merely because the action is punishable does not mean that the consequence of an unauthorised absence is not available under the Certified Standing Orders if it so specifically provides. 26. In the circumstances, we have no hesitation in setting aside the decision of the High Court in dismissing the writ petition. This order will, however, not preclude the respondent-Union if it is otherwise so entitled to raise an industrial dispute under the UPIDA.
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In the present case, the nature of the employment of the workmen was in dispute. According to the appellant, the workmen had been appointed in connection with a particular project and there was no question of absorbing them or their continuing in service once the project was completed. Admittedly, when the matter was pending before the High Court, there were 29 such projects under execution or awarded. Accordingly to the respondent-workmen, they were appointed as regular employees and they cited orders by which some of them were transferred to various projects at various places. In answer to this the appellants said that although the appellant corporation tried to accommodate as many daily wagers as they could in any new project, they were always under compulsion to engage local people of the locality where work was awarded. There was as such no question of transfer of any workman from one project to another. This was an issue which should have been resolved on the basis of evidence led. The Division Bench erred in rejecting the appellants submission summarily as also in placing the onus on the appellant to produce the appointment letters of thewas also a dispute as to the nature of the absence of the respondent-workmen. Correspondence said to have been exchanged between the parties with regard to the demands raised by the respondent-Union has been relied upon by the respondent in support of the submission that the absence was really on account of a strike. It is also submitted that the correspondence indicated that notice of the strike had been given. To counter the statement made in the writ petition by the respondent that the workmen were on strike, the appellants had said that no notice of strike had been given and, therefore, the strike, if any, was illegal. Significantly, the High Court has not relied upon the correspondence nor has it come to any decision on the question whether the strike was illegal or legal. In fact the High Court has proceeded on the basis that it was the accepted case that there was no notice given by the workmen that they were on strike. It cannot, therefore, be said, without more, that the absence of respondent-workmen from work was because they were on strike.16. The High Court incorrectly applied the provisions of Section 22 of the Industrial Disputes Act, 1947 to hold that no notice of strike was necessary. It is conceded by the respondent that the operative Act was the UPIDA which differs materially, in this connection, with the Industrial Disputes Act. Under Section 22 of the Industrial Disputes Act, a notice of strike is required to be given, as held by the High Court, only in the case of any public utility service and the appellant corporation is not a public utility service. However, under Section 65 of the UPIDA the notice of strike is required to be given in respect of an industrial establishment. It is not argued on behalf of the respondent that the appellant-Corporation is not an industrial establishment. Whatever the legal consequences of not giving of such notice may be, it cannot be said in the circumstances that the employees were admittedly on strike as a matter ofjudgment of the High Court cannot be sustained on the ground of alternative remedy. When it was drawn to the attention of the High Court that a previous writ petition raising the same issue had been dismissed on the ground of the existence of an adequate alternative remedy, the High Court should not have continued to dispose of the matter itself under Article 226 and in effect set aside the decision in the previous writthe circumstances, we have no hesitation in setting aside the decision of the High Court in dismissing the writ petition. This order will, however, not preclude the respondent-Union if it is otherwise so entitled to raise an industrial dispute under the UPIDA.
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Kundan Sugar Mills Vs. Ziyauddin & Others | joined such a service, the Privy Council found it easy to imply to term of transfer. That decision is therefore not of any relevancy to the present case. In Mary (Anamalai Plantation Workers Union) v. Selaliparai estate, 1956-1 Lab LJ 343 (LATI-Mad). Labour was recruited in the plantations without any differentiation being made between factory and field workers and it had been the common practice prevailing for several years to transfer the factory workers to the field and vice versa, according to the exigencies of work. A worker who had been appointed in such a plantation was transferred, owing to mechanisation in the factory, from the factory to the field. The Labour Appellate Tribunal of India held that in the circumstances of the case the liability to be so transferred must be deemed to be an implied condition of service. So too in Bata Shoe Company, Ltd. v. Ali Hasan, 1956-1 Lab LJ 278 : (AIR 1956 Pat 518 ), transfer of an employee in the circumstances of that case from one post to another was held not to be an alteration of any service condition within the meaning of S. 33 of the Industrial Disputes Act. That was case of a management employing a worker in one concern and transferring him from one post to another. In such a case it was possible to imply the condition of right of the management to transfer the employee from one post to another. S. N. Mukherjee v. Kemp and Co., Ltd., 1954 Lab AC 903, was a case arising out of S. 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950. The complaint there was that an employee was transferred by the management with a view to victimize him and that it amounted to alteration in the conditions of employment. It was held that if an employer employed a person it was implicit in the appointment that he could be transferred to any place where the business of the employer in the same line was situated, unless there was an express condition to the contrary in the contract of employment. In that case the worker was employed by Kemp and Co., Limited, which had branches in different places. The decision assumed that the business was one unit and that the only question raised was that he should not be transferred to a place different from the place where he was actually discharging his duties. These observations must be limited to the facts of that case. 6. It is not necessary to multiply the citation, for the other decisions relied on by the learned counsel for the appellant pursue the same reasoning followed in the aforesaid cases. 7. We have referred to the decisions only to distinguish them from the present case, and not to express our opinion as to the correctness of the decisions therein. It would be enough to point out that in all the said decisions the workers had been employed in a business or a concern and the question that arose was whether in the circumstances of each case the transfer from one branch to another was valid or amounted to victimization.None of these decisions deals with a case similar to that presented in this appeal, namely, whether a person employed in a factory can be transferred to some other independent concern started by the same employer at a stage subsequent to the date of his employment. None of these cases holds, as it is suggested by the learned counsel for the appellant, that every employer has the inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment. We, therefore, hold that it was not a condition of service of employment of the respondent either express or implied that the employer has the right to transfer them to a new concern started by him subsequent to the date of their employment. 8. The respondent also relied upon a Government Order No. 6122(ST)/XXXVI-A-640(S)-T-1953 in support of their contention that the order of transfer was bad. By this Order the Government of U.P. had directed that the employment of seasonal workmen in all vacuum pan sugar factories in the Uttar Pradesh should be governed by the rules contained in the annexure thereto. Rule 1 in the said annexure is to the following effect :"A worker who has worked or but for illness or any other unavoidable cause would have worked in a factory during the whole of the second half of the last preceding season will be employed in this season in such factory." This rule has no relevancy to the question raised in the present case. This rule only enjoins upon an employer to employ a worker in the circumstances mentioned therein in the same factory in which he was working in the previous season during the next season also. This does no prevent the employer to transfer an employee if he has the right to do so under the contract of service or under any statutory provisions. We have already held that the employer in the present case has no such right. 9. Lastly it is said that the Appellate Tribunal had no jurisdiction to set aside the finding of the State Industrial Tribunal, as it did not give rise to any substantial question of law within the meaning of S. 7(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950. The question raised was one of law, namely, whether the appellant had the right to transfer the respondents 1 to 4 from one concern to another.A substantial question of law was involved between the parties and that raised also an important principle governing the right of an employer to transfer his employees from one concern to another of his in the circumstances of this case. We, therefore, hold that a substantial question of law arose in the case and that it was well within the power of the Labour Appellate Tribunal to entertain the appeal. | 0[ds]It is true that the partners of the Sugar Mills at Amroha own also the Sugar Mills at Bulandshahr; but they were proprietors of the former Mills in 1946 whereas they purchased the latter mills only in the year 1951 and started the same in Bulandshahr in or about 1955. The respondents 1 to 4 were employed by the owners of the appellant-Mills at the Sugar Mills at Amroha at a time when they were not proprietors of the Sugar Mills at Bulandshahr. It is conceded that it was not an express term of the contract of service between the appellant and the respondents 1 to 4 that the latter should serve in any future concerns which the appellant might acquire or start. It is also in evidence that though the same persons owned both the Mills they were two different concerns. In the words of the Appellate Tribunal, the only connection between the two is in the identity of ownership and, but for it, one has nothing to do with the other. It is also in evidence that an imported workmen at Amroha is entitled to house-rent, fuel light and travelling expenses both ways, while at Bulandshahr the workmen are not entitled to any of these amenities. The workmen at Amroha are entitled to benefits under the Kaul Award while those at Bulandshahr are not so entitled. The General Manager, E. W. 1, in his evidence stated that "the interim bonus of the Bulandshahr factory as ordered by the Government in November 1955 was Rs. 11,000 while for Amroha it was nearly 1 1/2 lacs". He also stated that "the bonus for last year at Amroha would be probably equal to 1 1/2 months wages and at Bulandshahr equal to about 4 or 5 days wages". It is also in evidence that apart from the disparity in the payment of bonus the accounts are separately made up for the two mills. It is clear that the two mills are situated at different places with accounts separately maintained and governed by different service conditions, though they happened to be under the common management; therefore, they are treated as two different entities4. The question of law raised in this case must be considered in relation to the said facts. The argument of the learned counsel for the appellant that the right to transfer is implicit in every contract of service is too wide the mark. Apart from any statutory provision, the rights of an employer and an employee are governed by the terms of contracts between them or by the terms necessarily implied therefrom. It is conceded that there is no express agreement between the appellant and the respondents whereunder the appellant has the right to transfer the respondents to any of its concerns in any place and the respondents the duty to join the concerns to which they may be transferred. If so, can it be said that such a term has to be necessarily implied between the parties? When the respondents 1 to 4 were employed by the appellant the latter was running only one factory at Amroha. There is nothing on record to indicate that at that time it was intended to purchase factories at other places or to extend its activities in the same line at different places. It is also not suggested that even if the appellant had such an intention, the respondents 1 to 4 had knowledge of the same. Under such circumstances, without more, it would not be right to imply any such term between the contracting parties when the idea of starting new factories at different places was no in contemplation. Ordinarily the employees would have agreed only to serve in the factory then in existence and the employer would have employed them only in respect of that factory. The matter does not stop there. In the instant case, as we have indicated, the two factories are distinct entitled, situated at different places and, to import a term conferring a right on the employer to transfer respondents 1 to 4 to a different concerns is really to make a new contract between them6. It is not necessary to multiply the citation, for the other decisions relied on by the learned counsel for the appellant pursue the same reasoning followed in the aforesaid cases7. We have referred to the decisions only to distinguish them from the present case, and not to express our opinion as to the correctness of the decisions therein. It would be enough to point out that in all the said decisions the workers had been employed in a business or a concern and the question that arose was whether in the circumstances of each case the transfer from one branch to another was valid or amounted to victimization.None of these decisions deals with a case similar to that presented in this appeal, namely, whether a person employed in a factory can be transferred to some other independent concern started by the same employer at a stage subsequent to the date of his employment. None of these cases holds, as it is suggested by the learned counsel for the appellant, that every employer has the inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment. We, therefore, hold that it was not a condition of service of employment of the respondent either express or implied that the employer has the right to transfer them to a new concern started by him subsequent to the date of their employment9. Lastly it is said that the Appellate Tribunal had no jurisdiction to set aside the finding of the State Industrial Tribunal, as it did not give rise to any substantial question of law within the meaning of S. 7(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950. The question raised was one of law, namely, whether the appellant had the right to transfer the respondents 1 to 4 from one concern to another.A substantial question of law was involved between the parties and that raised also an important principle governing the right of an employer to transfer his employees from one concern to another of his in the circumstances of this case. We, therefore, hold that a substantial question of law arose in the case and that it was well within the power of the Labour Appellate Tribunal to entertain the appeal. | 0 | 2,828 | 1,151 | ### Instruction:
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joined such a service, the Privy Council found it easy to imply to term of transfer. That decision is therefore not of any relevancy to the present case. In Mary (Anamalai Plantation Workers Union) v. Selaliparai estate, 1956-1 Lab LJ 343 (LATI-Mad). Labour was recruited in the plantations without any differentiation being made between factory and field workers and it had been the common practice prevailing for several years to transfer the factory workers to the field and vice versa, according to the exigencies of work. A worker who had been appointed in such a plantation was transferred, owing to mechanisation in the factory, from the factory to the field. The Labour Appellate Tribunal of India held that in the circumstances of the case the liability to be so transferred must be deemed to be an implied condition of service. So too in Bata Shoe Company, Ltd. v. Ali Hasan, 1956-1 Lab LJ 278 : (AIR 1956 Pat 518 ), transfer of an employee in the circumstances of that case from one post to another was held not to be an alteration of any service condition within the meaning of S. 33 of the Industrial Disputes Act. That was case of a management employing a worker in one concern and transferring him from one post to another. In such a case it was possible to imply the condition of right of the management to transfer the employee from one post to another. S. N. Mukherjee v. Kemp and Co., Ltd., 1954 Lab AC 903, was a case arising out of S. 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950. The complaint there was that an employee was transferred by the management with a view to victimize him and that it amounted to alteration in the conditions of employment. It was held that if an employer employed a person it was implicit in the appointment that he could be transferred to any place where the business of the employer in the same line was situated, unless there was an express condition to the contrary in the contract of employment. In that case the worker was employed by Kemp and Co., Limited, which had branches in different places. The decision assumed that the business was one unit and that the only question raised was that he should not be transferred to a place different from the place where he was actually discharging his duties. These observations must be limited to the facts of that case. 6. It is not necessary to multiply the citation, for the other decisions relied on by the learned counsel for the appellant pursue the same reasoning followed in the aforesaid cases. 7. We have referred to the decisions only to distinguish them from the present case, and not to express our opinion as to the correctness of the decisions therein. It would be enough to point out that in all the said decisions the workers had been employed in a business or a concern and the question that arose was whether in the circumstances of each case the transfer from one branch to another was valid or amounted to victimization.None of these decisions deals with a case similar to that presented in this appeal, namely, whether a person employed in a factory can be transferred to some other independent concern started by the same employer at a stage subsequent to the date of his employment. None of these cases holds, as it is suggested by the learned counsel for the appellant, that every employer has the inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment. We, therefore, hold that it was not a condition of service of employment of the respondent either express or implied that the employer has the right to transfer them to a new concern started by him subsequent to the date of their employment. 8. The respondent also relied upon a Government Order No. 6122(ST)/XXXVI-A-640(S)-T-1953 in support of their contention that the order of transfer was bad. By this Order the Government of U.P. had directed that the employment of seasonal workmen in all vacuum pan sugar factories in the Uttar Pradesh should be governed by the rules contained in the annexure thereto. Rule 1 in the said annexure is to the following effect :"A worker who has worked or but for illness or any other unavoidable cause would have worked in a factory during the whole of the second half of the last preceding season will be employed in this season in such factory." This rule has no relevancy to the question raised in the present case. This rule only enjoins upon an employer to employ a worker in the circumstances mentioned therein in the same factory in which he was working in the previous season during the next season also. This does no prevent the employer to transfer an employee if he has the right to do so under the contract of service or under any statutory provisions. We have already held that the employer in the present case has no such right. 9. Lastly it is said that the Appellate Tribunal had no jurisdiction to set aside the finding of the State Industrial Tribunal, as it did not give rise to any substantial question of law within the meaning of S. 7(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950. The question raised was one of law, namely, whether the appellant had the right to transfer the respondents 1 to 4 from one concern to another.A substantial question of law was involved between the parties and that raised also an important principle governing the right of an employer to transfer his employees from one concern to another of his in the circumstances of this case. We, therefore, hold that a substantial question of law arose in the case and that it was well within the power of the Labour Appellate Tribunal to entertain the appeal.
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when they were not proprietors of the Sugar Mills at Bulandshahr. It is conceded that it was not an express term of the contract of service between the appellant and the respondents 1 to 4 that the latter should serve in any future concerns which the appellant might acquire or start. It is also in evidence that though the same persons owned both the Mills they were two different concerns. In the words of the Appellate Tribunal, the only connection between the two is in the identity of ownership and, but for it, one has nothing to do with the other. It is also in evidence that an imported workmen at Amroha is entitled to house-rent, fuel light and travelling expenses both ways, while at Bulandshahr the workmen are not entitled to any of these amenities. The workmen at Amroha are entitled to benefits under the Kaul Award while those at Bulandshahr are not so entitled. The General Manager, E. W. 1, in his evidence stated that "the interim bonus of the Bulandshahr factory as ordered by the Government in November 1955 was Rs. 11,000 while for Amroha it was nearly 1 1/2 lacs". He also stated that "the bonus for last year at Amroha would be probably equal to 1 1/2 months wages and at Bulandshahr equal to about 4 or 5 days wages". It is also in evidence that apart from the disparity in the payment of bonus the accounts are separately made up for the two mills. It is clear that the two mills are situated at different places with accounts separately maintained and governed by different service conditions, though they happened to be under the common management; therefore, they are treated as two different entities4. The question of law raised in this case must be considered in relation to the said facts. The argument of the learned counsel for the appellant that the right to transfer is implicit in every contract of service is too wide the mark. Apart from any statutory provision, the rights of an employer and an employee are governed by the terms of contracts between them or by the terms necessarily implied therefrom. It is conceded that there is no express agreement between the appellant and the respondents whereunder the appellant has the right to transfer the respondents to any of its concerns in any place and the respondents the duty to join the concerns to which they may be transferred. If so, can it be said that such a term has to be necessarily implied between the parties? When the respondents 1 to 4 were employed by the appellant the latter was running only one factory at Amroha. There is nothing on record to indicate that at that time it was intended to purchase factories at other places or to extend its activities in the same line at different places. It is also not suggested that even if the appellant had such an intention, the respondents 1 to 4 had knowledge of the same. Under such circumstances, without more, it would not be right to imply any such term between the contracting parties when the idea of starting new factories at different places was no in contemplation. Ordinarily the employees would have agreed only to serve in the factory then in existence and the employer would have employed them only in respect of that factory. The matter does not stop there. In the instant case, as we have indicated, the two factories are distinct entitled, situated at different places and, to import a term conferring a right on the employer to transfer respondents 1 to 4 to a different concerns is really to make a new contract between them6. It is not necessary to multiply the citation, for the other decisions relied on by the learned counsel for the appellant pursue the same reasoning followed in the aforesaid cases7. We have referred to the decisions only to distinguish them from the present case, and not to express our opinion as to the correctness of the decisions therein. It would be enough to point out that in all the said decisions the workers had been employed in a business or a concern and the question that arose was whether in the circumstances of each case the transfer from one branch to another was valid or amounted to victimization.None of these decisions deals with a case similar to that presented in this appeal, namely, whether a person employed in a factory can be transferred to some other independent concern started by the same employer at a stage subsequent to the date of his employment. None of these cases holds, as it is suggested by the learned counsel for the appellant, that every employer has the inherent right to transfer his employee to another place where he chooses to start a business subsequent to the date of the employment. We, therefore, hold that it was not a condition of service of employment of the respondent either express or implied that the employer has the right to transfer them to a new concern started by him subsequent to the date of their employment9. Lastly it is said that the Appellate Tribunal had no jurisdiction to set aside the finding of the State Industrial Tribunal, as it did not give rise to any substantial question of law within the meaning of S. 7(1) of the Industrial Disputes (Appellate Tribunal) Act, 1950. The question raised was one of law, namely, whether the appellant had the right to transfer the respondents 1 to 4 from one concern to another.A substantial question of law was involved between the parties and that raised also an important principle governing the right of an employer to transfer his employees from one concern to another of his in the circumstances of this case. We, therefore, hold that a substantial question of law arose in the case and that it was well within the power of the Labour Appellate Tribunal to entertain the appeal.
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Martin Burn Ltd Vs. The Corporation Of Calcutta | taken by the High Court in the case in hand for it made the order of remand only because the corporation could not make a valuation any more, the time limit prescribed for it under Section 131 (2) (b) having expired. If the Corporation could make the valuation, presumably the High Court would not have made the order of remand. Now Section 131 (2) (b) provides that when a valuation is cancelled on the ground of irregularity, a fresh valuation may be made by the Executive Officer. It would be an unnatural construction of the Act to say that the operation of this provision would depend on the discretion of the appellate Court to proceed or not to proceed to make a valuation itself after cancelling the valuation previously made by the Corporation. We think that in view of this provision, once a valuation is cancelled a fresh valuation can only be made in terms of it and not in any other way. That is what S. R. Das, J. said and with it we agree. That is another reason for saying that when a valuation is cancelled, the Act does not contemplate a fresh valuation being made by the Court, for if it did so, S. 131 (2) (b) would have operation only when the Court decided it to have. We are not prepared to accept as correct an interpretation of the Act leading to such an unnatural result.13. While on S. 131 (2) (b) we observe that it was not contended that a Court had on power to cancel a valuation; all that was said was that after cancellation the Court must or may proceed to make a fresh valuation. This we have held to be an untenable view. A point was, however, made that S. 131 (2) (b) applied only to a cancellation on the ground of irregularity, that is, a procedural defect such as, absence of notice, omission to give a hearing, etc. There is, however, no reason to restrict the ordinary meaning of the word "irregularity" and confine it to procedural defects only. None has been advanced. Such a contention was rejected, and we think rightly, in 57 Cal WN 882: (AIR 1953 Cal 773 ). That word clearly covers any case where a thing has not been done in the manner laid down by the statute, irrespective of what that manner might be. In principle there would be nothing to justify a special provision like S. 131 (2) (b) being made to cover a case of procedural irregularity only.14. We can now deal with the reasoning on which the High Court in the present case justified its order of remand. It realised that by making the order it was depriving the appellant of one of its chances to object to the valuation, namely, the chance under S. 139, but it felt that by upholding that right of the appellant it would be depriving the Corporation of its rates wholly as the time limit prescribed by S. 131 (2) (b) had expired. It thought that it was faced with two evils and that it would be choosing the lesser of the two if it allowed the Corporation a chance to collect its rates. With great respect, we find this line of reasoning altogether unsupportable. A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operating. A statute must of course be given effect to whether a Court likes the result or not. When the High Court found that S. 131 (2) (b) had been attracted to the case, it had no power to set that provision at naught.15. It remains to deal with one other argument advanced for the Corporation. It was said that the entire proceeding in connection with the ascertainment of the valuation was one and continuous and its only object was to ascertain the valuation and therefore, the Court annulling a valuation made on a wrong basis, must have power to make a new valuation itself on the correct basis. We are not impressed by this contention. The conclusion does not follow form the premise. The proceeding for making the valuation, whether it is continuous on not must be in terms of the statute. If the statute does not give the Court the power to make the valuation, it cannot be said to possess that power so that the supposed object may be achieved. Further the object is not to make a valuation anyhow but to make it only in terms of the Act.16. We think we have now considered all the different aspects of the matter that were placed before us by learned counsel on either side. Our conclusion for the reasons earlier stated is that looked from all points of view, the order remand is not justifiable in law; it was not within the inherent power of the High Court to remand the case for the doing of a thing which the Act did not countenance. The remand was futile. It offended the Act as it deprived the appellant of one of its statutory rights. The order has to be set aside.17. Before concluding we may state that the Corporation had made two valuations of the premises, one called a general valuation for the entire six yearly period mentioned in S. 131 (1) and the other an intermediate valuation made later but within that period to have effect for the remainder of the period, on account of certain additional construction in the premises put up since the earlier assessment. Objections had been taken by the appellant to both these valuations under S. 139 by independent proceedings and separate appeals filed under S. 141 from the order made in each of the proceedings. As earlier stated, the appeals raised the same point. They were therefore, dealt with in one judgment by both the Courts below, hence the two appeals before us. | 1[ds]13. While on S. 131 (2) (b) we observe that it was not contended that a Court had on power to cancel a valuation; all that was said was that after cancellation the Court must or may proceed to make a fresh valuation. This we have held to be an untenable view. A point was, however, made that S. 131 (2) (b) applied only to a cancellation on the ground of irregularity, that is, a procedural defect such as, absence of notice, omission to give a hearing, etc. There is, however, no reason to restrict the ordinary meaning of the word "irregularity" and confine it to procedural defects only. None has been advanced. Such a contention was rejected, and we think rightly, in 57 Cal WN 882: (AIR 1953 Cal 773 ). That word clearly covers any case where a thing has not been done in the manner laid down by the statute, irrespective of what that manner might be. In principle there would be nothing to justify a special provision like S. 131 (2) (b) being made to cover a case of procedural irregularity only.14. We can now deal with the reasoning on which the High Court in the present case justified its order of remand. It realised that by making the order it was depriving the appellant of one of its chances to object to the valuation, namely, the chance under S. 139, but it felt that by upholding that right of the appellant it would be depriving the Corporation of its rates wholly as the time limit prescribed by S. 131 (2) (b) had expired. It thought that it was faced with two evils and that it would be choosing the lesser of the two if it allowed the Corporation a chance to collect its rates. With great respect, we find this line of reasoning altogether unsupportable. A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operating. A statute must of course be given effect to whether a Court likes the result or not. When the High Court found that S. 131 (2) (b) had been attracted to the case, it had no power to set that provision at naught.15. It remains to deal with one other argument advanced for the Corporation. It was said that the entire proceeding in connection with the ascertainment of the valuation was one and continuous and its only object was to ascertain the valuation and therefore, the Court annulling a valuation made on a wrong basis, must have power to make a new valuation itself on the correct basis. We are not impressed by this contention. The conclusion does not follow form the premise. The proceeding for making the valuation, whether it is continuous on not must be in terms of the statute. If the statute does not give the Court the power to make the valuation, it cannot be said to possess that power so that the supposed object may be achieved. Further the object is not to make a valuation anyhow but to make it only in terms of the Act.16. We think we have now considered all the different aspects of the matter that were placed before us by learned counsel on either side. Our conclusion for the reasons earlier stated is that looked from all points of view, the order remand is not justifiable in law; it was not within the inherent power of the High Court to remand the case for the doing of a thing which the Act did not countenance. The remand was futile. It offended the Act as it deprived the appellant of one of its statutory rights. The order has to be set aside.17. Before concluding we may state that the Corporation had made two valuations of the premises, one called a general valuation for the entire six yearly period mentioned in S. 131 (1) and the other an intermediate valuation made later but within that period to have effect for the remainder of the period, on account of certain additional construction in the premises put up since the earlier assessment. Objections had been taken by the appellant to both these valuations under S. 139 by independent proceedings and separate appeals filed under S. 141 from the order made in each of the proceedings. As earlier stated, the appeals raised the same point. They were therefore, dealt with in one judgment by both the Courts below, hence the two appeals before us. | 1 | 4,481 | 854 | ### Instruction:
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taken by the High Court in the case in hand for it made the order of remand only because the corporation could not make a valuation any more, the time limit prescribed for it under Section 131 (2) (b) having expired. If the Corporation could make the valuation, presumably the High Court would not have made the order of remand. Now Section 131 (2) (b) provides that when a valuation is cancelled on the ground of irregularity, a fresh valuation may be made by the Executive Officer. It would be an unnatural construction of the Act to say that the operation of this provision would depend on the discretion of the appellate Court to proceed or not to proceed to make a valuation itself after cancelling the valuation previously made by the Corporation. We think that in view of this provision, once a valuation is cancelled a fresh valuation can only be made in terms of it and not in any other way. That is what S. R. Das, J. said and with it we agree. That is another reason for saying that when a valuation is cancelled, the Act does not contemplate a fresh valuation being made by the Court, for if it did so, S. 131 (2) (b) would have operation only when the Court decided it to have. We are not prepared to accept as correct an interpretation of the Act leading to such an unnatural result.13. While on S. 131 (2) (b) we observe that it was not contended that a Court had on power to cancel a valuation; all that was said was that after cancellation the Court must or may proceed to make a fresh valuation. This we have held to be an untenable view. A point was, however, made that S. 131 (2) (b) applied only to a cancellation on the ground of irregularity, that is, a procedural defect such as, absence of notice, omission to give a hearing, etc. There is, however, no reason to restrict the ordinary meaning of the word "irregularity" and confine it to procedural defects only. None has been advanced. Such a contention was rejected, and we think rightly, in 57 Cal WN 882: (AIR 1953 Cal 773 ). That word clearly covers any case where a thing has not been done in the manner laid down by the statute, irrespective of what that manner might be. In principle there would be nothing to justify a special provision like S. 131 (2) (b) being made to cover a case of procedural irregularity only.14. We can now deal with the reasoning on which the High Court in the present case justified its order of remand. It realised that by making the order it was depriving the appellant of one of its chances to object to the valuation, namely, the chance under S. 139, but it felt that by upholding that right of the appellant it would be depriving the Corporation of its rates wholly as the time limit prescribed by S. 131 (2) (b) had expired. It thought that it was faced with two evils and that it would be choosing the lesser of the two if it allowed the Corporation a chance to collect its rates. With great respect, we find this line of reasoning altogether unsupportable. A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operating. A statute must of course be given effect to whether a Court likes the result or not. When the High Court found that S. 131 (2) (b) had been attracted to the case, it had no power to set that provision at naught.15. It remains to deal with one other argument advanced for the Corporation. It was said that the entire proceeding in connection with the ascertainment of the valuation was one and continuous and its only object was to ascertain the valuation and therefore, the Court annulling a valuation made on a wrong basis, must have power to make a new valuation itself on the correct basis. We are not impressed by this contention. The conclusion does not follow form the premise. The proceeding for making the valuation, whether it is continuous on not must be in terms of the statute. If the statute does not give the Court the power to make the valuation, it cannot be said to possess that power so that the supposed object may be achieved. Further the object is not to make a valuation anyhow but to make it only in terms of the Act.16. We think we have now considered all the different aspects of the matter that were placed before us by learned counsel on either side. Our conclusion for the reasons earlier stated is that looked from all points of view, the order remand is not justifiable in law; it was not within the inherent power of the High Court to remand the case for the doing of a thing which the Act did not countenance. The remand was futile. It offended the Act as it deprived the appellant of one of its statutory rights. The order has to be set aside.17. Before concluding we may state that the Corporation had made two valuations of the premises, one called a general valuation for the entire six yearly period mentioned in S. 131 (1) and the other an intermediate valuation made later but within that period to have effect for the remainder of the period, on account of certain additional construction in the premises put up since the earlier assessment. Objections had been taken by the appellant to both these valuations under S. 139 by independent proceedings and separate appeals filed under S. 141 from the order made in each of the proceedings. As earlier stated, the appeals raised the same point. They were therefore, dealt with in one judgment by both the Courts below, hence the two appeals before us.
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13. While on S. 131 (2) (b) we observe that it was not contended that a Court had on power to cancel a valuation; all that was said was that after cancellation the Court must or may proceed to make a fresh valuation. This we have held to be an untenable view. A point was, however, made that S. 131 (2) (b) applied only to a cancellation on the ground of irregularity, that is, a procedural defect such as, absence of notice, omission to give a hearing, etc. There is, however, no reason to restrict the ordinary meaning of the word "irregularity" and confine it to procedural defects only. None has been advanced. Such a contention was rejected, and we think rightly, in 57 Cal WN 882: (AIR 1953 Cal 773 ). That word clearly covers any case where a thing has not been done in the manner laid down by the statute, irrespective of what that manner might be. In principle there would be nothing to justify a special provision like S. 131 (2) (b) being made to cover a case of procedural irregularity only.14. We can now deal with the reasoning on which the High Court in the present case justified its order of remand. It realised that by making the order it was depriving the appellant of one of its chances to object to the valuation, namely, the chance under S. 139, but it felt that by upholding that right of the appellant it would be depriving the Corporation of its rates wholly as the time limit prescribed by S. 131 (2) (b) had expired. It thought that it was faced with two evils and that it would be choosing the lesser of the two if it allowed the Corporation a chance to collect its rates. With great respect, we find this line of reasoning altogether unsupportable. A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operating. A statute must of course be given effect to whether a Court likes the result or not. When the High Court found that S. 131 (2) (b) had been attracted to the case, it had no power to set that provision at naught.15. It remains to deal with one other argument advanced for the Corporation. It was said that the entire proceeding in connection with the ascertainment of the valuation was one and continuous and its only object was to ascertain the valuation and therefore, the Court annulling a valuation made on a wrong basis, must have power to make a new valuation itself on the correct basis. We are not impressed by this contention. The conclusion does not follow form the premise. The proceeding for making the valuation, whether it is continuous on not must be in terms of the statute. If the statute does not give the Court the power to make the valuation, it cannot be said to possess that power so that the supposed object may be achieved. Further the object is not to make a valuation anyhow but to make it only in terms of the Act.16. We think we have now considered all the different aspects of the matter that were placed before us by learned counsel on either side. Our conclusion for the reasons earlier stated is that looked from all points of view, the order remand is not justifiable in law; it was not within the inherent power of the High Court to remand the case for the doing of a thing which the Act did not countenance. The remand was futile. It offended the Act as it deprived the appellant of one of its statutory rights. The order has to be set aside.17. Before concluding we may state that the Corporation had made two valuations of the premises, one called a general valuation for the entire six yearly period mentioned in S. 131 (1) and the other an intermediate valuation made later but within that period to have effect for the remainder of the period, on account of certain additional construction in the premises put up since the earlier assessment. Objections had been taken by the appellant to both these valuations under S. 139 by independent proceedings and separate appeals filed under S. 141 from the order made in each of the proceedings. As earlier stated, the appeals raised the same point. They were therefore, dealt with in one judgment by both the Courts below, hence the two appeals before us.
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The Sugauli Sugar Works (Private) Ltd Vs. The Asstt. Registrar, Co-Operativesocieties | whether the High Court has taken a correct view of the provisions of S. 48, the relevant portions of which are as follows:"48(1) If any dispute touching the business of a registered society...........,arises-(a) amongst members, past members persons claiming through members, past members or deceased members and sureties of members, past members or deceased members, whether such sureties are members or non-members; or(b) between a member, past member, persons claiming through a member, past member or deceased member or sureties of members, past members or deceased members, whether such sureties are members or non-members, and the society, its managing committee or any officer, agent or servant of the society; or(c) ..... ..... ......... .... .... :..(d) .... ..... ..... .... .... .... ....(e) between a financing bank authorised under the provisions of sub-section (1) of section 16 and a person who is not a member of a registered society;such disputes shall be referred to the Registrar...... . . . . .. , ... . ..,.. . . .. . .. . .. ..Explanation 1-A claim by a registered society for any debt or demand due to it from a member, non-member, past member or the nominee, heir or legal representative of a deceased member or non-member or from sureties of members, past members or deceased members, whether such sureties are members or non-members, shall be a dispute touching the business of the society within the meaning of this sub-section even in case such debt or demand is admitted and the only point at issue is the ability to pay or the manner of enforcement of payment......................................................................................................................................................................(9) Save as expressly provided in this section, a decision of the Registrar under this section, and, subject to the orders of the Registrar on appeal or review, a decision given in a dispute transferred or referred under clause (b) or (c) of sub-section (2), shall be final."9. From the provisions of the Act, set out above, it is manifest that the Act created a special tribunal, namely, the Registrar of Co-operative Societies, to deal with certain disputes specified in S. 48 (1)(a). to (e), This special tribunal was created with a view to shortening litigation and providing speedy relief to registered societies and their members in their disputes inter se in respect of the business of the society. Before the amendments introduced by the Act of 1948., the disputes which could be entertained by the Registrar were disputes amongst members, past members or their heirs or their sureties or between a society and its officers, agents or servants, or between a society and other registered societies (without meaning to exhaust all the categories.) But, before the amendments, one who was not a member of society or was not claiming through a member or a past member or a deceased member, or was not a surety of a member or a deceased member, was not subject to the jurisdiction of the Registrar under S. 48. That is to say, any dispute between a society or its members, past members or deceased members or sureties of such members on the one hand and non-members on the other was not within the purview of the section, so that the appellant company, which is not a registered society or a member of a registered society, could not have its claim, or a claim against it by a registered society, referred to the Registrar for decision, under this section. Such a dispute by a society or its members against a non-member had to be taken to the ordinary courts for decision.10. In our opinion, the contention raised on behalf of the appellant is correct By the amending Act of 1948, the aforesaid relevant and important amendments were introduced into the Act. The effect of these amendments is that a claim by a financing bank against a non-member to whom the former may have made an advance in cash or kind, with the sanction of the Registrar under S. 16 (1), would be entertainable by the Registrar, on a reference. But that does not mean that a claim which is not of the description referred to in S. 16 (l), read with S. 2(c), by a registered society against any non-member, who is not an agriculturist, is within the purview of S. 48 (1), read with the Explanation. The Explanation cannot be read as adding a new head to the categories (a) to (e) under S. 4 (1), of disputes which may be referred to the Registrar, Originally, the Explanation had, been added only to make it clear that even if a debt or a demand is admitted and the only point at issue is the ability to pay or the manner of enforcement of payment, the dispute would come within the purview of the main S. 48(1). The addition of the word non-member, by the amending Act of 1948, to the first Explanation has not enlarged the scope of the main S. 48 (1) so as to make all kinds of disputes between a registered society and a non-member cognizable by the Registrar, thus excluding the jurisdiction of the ordinary courts.11. In the instant case, it is manifest that the dispute is between a registered society, the second respondent, and the appellant, a non-member, in respect of the claim for commission and interest thereon for supply of sugarcane, and the appellant alleges that it as a counter-claim of a lakh and fifty thousand rupees for short and irregular supply of sugarcane against that respondent. These are matters which, in our view, are wholly beyond the purview of S. 48 of the Act, when it is remembered that the second respondent is not a financing bank and that the appellant is not an agriculturist to whom any advances in cash or kind had been made or could have been made so as to bring the appellant within the purview of S. 48(1(e) and consequentially of Explanation 1.The decision of the Patna High Court to the contrary is, therefore, not correct. | 1[ds]4. Before examining the provisions of the Act, as, it stands at present, it is necessary to set out the legislative history of the law on the subject. When themovement was set up in the beginning of this century, the law governing cooperative societies was enacted as TheCooperative Societies Act(II of1912), by the Indian Legislature. That Central Act continued in force in Bihar and Orissa until it was repealed by the Bihar Orissa Legislative Council by the Bihar and OrissaCooperative Societies Act(B. and O. Act VI of 1935), after obtaining the previous sanction of thes. (3) of S.of the Government of India Act. The Act of 1935 was enacted with a view to consolidate and amend the law relating tosocieties in the Province of Bihar and Orissa, as it then was. As it displaced theCooperative Societies Actof 1912, so far as the Province of Bihar and Orissa was concerned, S. 5 enacted that all references to theSocieties Act,1912, occurring in any enactment made by any authority in British India, and for the time being in force in the province, shall be construed as references to the new Act. Under S.7, a society, which has as its object the promotion of the common interests of its members in accordance with cooperative (principles, or a society established with the object of facilitating the operation of such a society, may be registered under the Act. On such registration, the Society becomes a body corporate with perpetual succession and a common seal, and with power to acquire and hold property, to enter into contracts, to institute a defend suits, etc. Under S. 15, a registered society shall receive deposits and loans from members andonly to such extent and under such conditions as may be prescribed. Under S.16, ordinarily a registered society shall not make a loan to any person other than a member, except with the general or special sanction of the Registrar, and subject to such restrictions as he may impose. Section 17 further provides for such prohibition and restrictions, in respect of the transaction of a registered society with persons other than members, as the Provincial Government may by rules prescribe. Section 48 makes it obligatory that any dispute touching the business of a registered society, among members, past members, persons claiming through members, past members or deceased members, and sureties of members, past members or deceased members, whether such sureties are members oror between them and the registered society, shall be referred to the Registrar. By virtue of Explanation (1) to the section, a claim by a registered society for any debt or demand due to it from a member or a past member or his heir or legal representative or from sureties, whether they are members orshall be a dispute within the meaning of the main section, even though such debt or demand is admitted and the only paint at issue is the ability to pay or the manner of enforcement of payment.5. It will thus be seen that the Act is limited in its operation to registered societies and their members in their dealings with one another. It is only in exceptional cases of borrowing by a registered society fromin accordance with the rules andprescribed by the competent authority, or in case of loan to a nonmember under the provisions of S. 16, that there could be dealings between registered societies andkeeping aside the case of sureties of members, who may bebut who also come within the purview of dealings between a society and its members.6. Such were the relevant provisions of the Act when it was amended by the BiharSocieties (Amendment) Act, 1942, and the BiharSocieties (Amendment) Act, 1944, enacted by the Governor of Bihar in exercise of the powers assumed to himself by the Proclamation dated November 3, 1939, issued by him under S. 93 of the Government of India Act, 1935. For our purposes, it is only necessary to notice some of the amendments made by the amending Act of 1944 (Bihar Act X of 1944), By S. 2, cl. (c) of S. 2 of the Act of 1935 was substituted in theseIt is not necessary to refer to the other consequential amendments made and the addition of a new chapter 7A, relating to the manner of recovery. The amendments effected by the amending Act of 1944 had been enacted by the Governor of Bihar in exercise of his special powers aforesaid. The provisions of those amendments wereas Act XVI of 1948 We would, therefore, refer hereinafter to the amendments in question as the amendments of 1948.8. As already indicated, a Division Bench of the Patna High Court has laid it down, in the case of ILR 40 Pat 7 that the Explanation to S. 48 (1) of the Act covers a claim by a register society for any debt or demand from aand that, therefore, the claim of a registered society against the railway company for compensation for short supply is a dispute within the ambit of S. 48 of the Act, and that, therefore the Assistant Registrar,Societies, had jurisdiction to determine the dispute under S. 48(2) of the Act. Relying upon that decision, the High Court dismissed the appellants petition under Arts. 226 and 227 of the Constitution, in limine. The appellant has questioned the correctness of that decision. The question, therefore, is whether the High Court has taken a correct view of the provisions of S. 48, the relevant portions of which are asFrom the provisions of the Act, set out above, it is manifest that the Act created a special tribunal, namely, the Registrar ofSocieties, to deal with certain disputes specified in S. 48 (1)(a). to (e), This special tribunal was created with a view to shortening litigation and providing speedy relief to registered societies and their members in their disputes inter se in respect of the business of the society. Before the amendments introduced by the Act of 1948., the disputes which could be entertained by the Registrar were disputes amongst members, past members or their heirs or their sureties or between a society and its officers, agents or servants, or between a society and other registered societies (without meaning to exhaust all the categories.) But, before the amendments, one who was not a member of society or was not claiming through a member or a past member or a deceased member, or was not a surety of a member or a deceased member, was not subject to the jurisdiction of the Registrar under S. 48. That is to say, any dispute between a society or its members, past members or deceased members or sureties of such members on the one hand andon the other was not within the purview of the section, so that the appellant company, which is not a registered society or a member of a registered society, could not have its claim, or a claim against it by a registered society, referred to the Registrar for decision, under this section. Such a dispute by a society or its members against ahad to be taken to the ordinary courts for decision.10. In our opinion, the contention raised on behalf of the appellant is correct By the amending Act of 1948, the aforesaid relevant and important amendments were introduced into the Act. The effect of these amendments is that a claim by a financing bank against ato whom the former may have made an advance in cash or kind, with the sanction of the Registrar under S. 16 (1), would be entertainable by the Registrar, on a reference. But that does not mean that a claim which is not of the description referred to in S. 16 (l), read with S. 2(c), by a registered society against anywho is not an agriculturist, is within the purview of S. 48 (1), read with the Explanation. The Explanation cannot be read as adding a new head to the categories (a) to (e) under S. 4 (1), of disputes which may be referred to the Registrar, Originally, the Explanation had, been added only to make it clear that even if a debt or a demand is admitted and the only point at issue is the ability to pay or the manner of enforcement of payment, the dispute would come within the purview of the main S. 48(1). The addition of the wordby the amending Act of 1948, to the first Explanation has not enlarged the scope of the main S. 48 (1) so as to make all kinds of disputes between a registered society and acognizable by the Registrar, thus excluding the jurisdiction of the ordinary courts.11. In the instant case, it is manifest that the dispute is between a registered society, the second respondent, and the appellant, ain respect of the claim for commission and interest thereon for supply of sugarcane, and the appellant alleges that it as aof a lakh and fifty thousand rupees for short and irregular supply of sugarcane against that respondent. These are matters which, in our view, are wholly beyond the purview of S. 48 of the Act, when it is remembered that the second respondent is not a financing bank and that the appellant is not an agriculturist to whom any advances in cash or kind had been made or could have been made so as to bring the appellant within the purview of S. 48(1(e) and consequentially of Explanation 1.The decision of the Patna High Court to the contrary is, therefore, not correct. | 1 | 3,146 | 1,797 | ### 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:
whether the High Court has taken a correct view of the provisions of S. 48, the relevant portions of which are as follows:"48(1) If any dispute touching the business of a registered society...........,arises-(a) amongst members, past members persons claiming through members, past members or deceased members and sureties of members, past members or deceased members, whether such sureties are members or non-members; or(b) between a member, past member, persons claiming through a member, past member or deceased member or sureties of members, past members or deceased members, whether such sureties are members or non-members, and the society, its managing committee or any officer, agent or servant of the society; or(c) ..... ..... ......... .... .... :..(d) .... ..... ..... .... .... .... ....(e) between a financing bank authorised under the provisions of sub-section (1) of section 16 and a person who is not a member of a registered society;such disputes shall be referred to the Registrar...... . . . . .. , ... . ..,.. . . .. . .. . .. ..Explanation 1-A claim by a registered society for any debt or demand due to it from a member, non-member, past member or the nominee, heir or legal representative of a deceased member or non-member or from sureties of members, past members or deceased members, whether such sureties are members or non-members, shall be a dispute touching the business of the society within the meaning of this sub-section even in case such debt or demand is admitted and the only point at issue is the ability to pay or the manner of enforcement of payment......................................................................................................................................................................(9) Save as expressly provided in this section, a decision of the Registrar under this section, and, subject to the orders of the Registrar on appeal or review, a decision given in a dispute transferred or referred under clause (b) or (c) of sub-section (2), shall be final."9. From the provisions of the Act, set out above, it is manifest that the Act created a special tribunal, namely, the Registrar of Co-operative Societies, to deal with certain disputes specified in S. 48 (1)(a). to (e), This special tribunal was created with a view to shortening litigation and providing speedy relief to registered societies and their members in their disputes inter se in respect of the business of the society. Before the amendments introduced by the Act of 1948., the disputes which could be entertained by the Registrar were disputes amongst members, past members or their heirs or their sureties or between a society and its officers, agents or servants, or between a society and other registered societies (without meaning to exhaust all the categories.) But, before the amendments, one who was not a member of society or was not claiming through a member or a past member or a deceased member, or was not a surety of a member or a deceased member, was not subject to the jurisdiction of the Registrar under S. 48. That is to say, any dispute between a society or its members, past members or deceased members or sureties of such members on the one hand and non-members on the other was not within the purview of the section, so that the appellant company, which is not a registered society or a member of a registered society, could not have its claim, or a claim against it by a registered society, referred to the Registrar for decision, under this section. Such a dispute by a society or its members against a non-member had to be taken to the ordinary courts for decision.10. In our opinion, the contention raised on behalf of the appellant is correct By the amending Act of 1948, the aforesaid relevant and important amendments were introduced into the Act. The effect of these amendments is that a claim by a financing bank against a non-member to whom the former may have made an advance in cash or kind, with the sanction of the Registrar under S. 16 (1), would be entertainable by the Registrar, on a reference. But that does not mean that a claim which is not of the description referred to in S. 16 (l), read with S. 2(c), by a registered society against any non-member, who is not an agriculturist, is within the purview of S. 48 (1), read with the Explanation. The Explanation cannot be read as adding a new head to the categories (a) to (e) under S. 4 (1), of disputes which may be referred to the Registrar, Originally, the Explanation had, been added only to make it clear that even if a debt or a demand is admitted and the only point at issue is the ability to pay or the manner of enforcement of payment, the dispute would come within the purview of the main S. 48(1). The addition of the word non-member, by the amending Act of 1948, to the first Explanation has not enlarged the scope of the main S. 48 (1) so as to make all kinds of disputes between a registered society and a non-member cognizable by the Registrar, thus excluding the jurisdiction of the ordinary courts.11. In the instant case, it is manifest that the dispute is between a registered society, the second respondent, and the appellant, a non-member, in respect of the claim for commission and interest thereon for supply of sugarcane, and the appellant alleges that it as a counter-claim of a lakh and fifty thousand rupees for short and irregular supply of sugarcane against that respondent. These are matters which, in our view, are wholly beyond the purview of S. 48 of the Act, when it is remembered that the second respondent is not a financing bank and that the appellant is not an agriculturist to whom any advances in cash or kind had been made or could have been made so as to bring the appellant within the purview of S. 48(1(e) and consequentially of Explanation 1.The decision of the Patna High Court to the contrary is, therefore, not correct.
### Response:
1
### Explanation:
of dealings between a society and its members.6. Such were the relevant provisions of the Act when it was amended by the BiharSocieties (Amendment) Act, 1942, and the BiharSocieties (Amendment) Act, 1944, enacted by the Governor of Bihar in exercise of the powers assumed to himself by the Proclamation dated November 3, 1939, issued by him under S. 93 of the Government of India Act, 1935. For our purposes, it is only necessary to notice some of the amendments made by the amending Act of 1944 (Bihar Act X of 1944), By S. 2, cl. (c) of S. 2 of the Act of 1935 was substituted in theseIt is not necessary to refer to the other consequential amendments made and the addition of a new chapter 7A, relating to the manner of recovery. The amendments effected by the amending Act of 1944 had been enacted by the Governor of Bihar in exercise of his special powers aforesaid. The provisions of those amendments wereas Act XVI of 1948 We would, therefore, refer hereinafter to the amendments in question as the amendments of 1948.8. As already indicated, a Division Bench of the Patna High Court has laid it down, in the case of ILR 40 Pat 7 that the Explanation to S. 48 (1) of the Act covers a claim by a register society for any debt or demand from aand that, therefore, the claim of a registered society against the railway company for compensation for short supply is a dispute within the ambit of S. 48 of the Act, and that, therefore the Assistant Registrar,Societies, had jurisdiction to determine the dispute under S. 48(2) of the Act. Relying upon that decision, the High Court dismissed the appellants petition under Arts. 226 and 227 of the Constitution, in limine. The appellant has questioned the correctness of that decision. The question, therefore, is whether the High Court has taken a correct view of the provisions of S. 48, the relevant portions of which are asFrom the provisions of the Act, set out above, it is manifest that the Act created a special tribunal, namely, the Registrar ofSocieties, to deal with certain disputes specified in S. 48 (1)(a). to (e), This special tribunal was created with a view to shortening litigation and providing speedy relief to registered societies and their members in their disputes inter se in respect of the business of the society. Before the amendments introduced by the Act of 1948., the disputes which could be entertained by the Registrar were disputes amongst members, past members or their heirs or their sureties or between a society and its officers, agents or servants, or between a society and other registered societies (without meaning to exhaust all the categories.) But, before the amendments, one who was not a member of society or was not claiming through a member or a past member or a deceased member, or was not a surety of a member or a deceased member, was not subject to the jurisdiction of the Registrar under S. 48. That is to say, any dispute between a society or its members, past members or deceased members or sureties of such members on the one hand andon the other was not within the purview of the section, so that the appellant company, which is not a registered society or a member of a registered society, could not have its claim, or a claim against it by a registered society, referred to the Registrar for decision, under this section. Such a dispute by a society or its members against ahad to be taken to the ordinary courts for decision.10. In our opinion, the contention raised on behalf of the appellant is correct By the amending Act of 1948, the aforesaid relevant and important amendments were introduced into the Act. The effect of these amendments is that a claim by a financing bank against ato whom the former may have made an advance in cash or kind, with the sanction of the Registrar under S. 16 (1), would be entertainable by the Registrar, on a reference. But that does not mean that a claim which is not of the description referred to in S. 16 (l), read with S. 2(c), by a registered society against anywho is not an agriculturist, is within the purview of S. 48 (1), read with the Explanation. The Explanation cannot be read as adding a new head to the categories (a) to (e) under S. 4 (1), of disputes which may be referred to the Registrar, Originally, the Explanation had, been added only to make it clear that even if a debt or a demand is admitted and the only point at issue is the ability to pay or the manner of enforcement of payment, the dispute would come within the purview of the main S. 48(1). The addition of the wordby the amending Act of 1948, to the first Explanation has not enlarged the scope of the main S. 48 (1) so as to make all kinds of disputes between a registered society and acognizable by the Registrar, thus excluding the jurisdiction of the ordinary courts.11. In the instant case, it is manifest that the dispute is between a registered society, the second respondent, and the appellant, ain respect of the claim for commission and interest thereon for supply of sugarcane, and the appellant alleges that it as aof a lakh and fifty thousand rupees for short and irregular supply of sugarcane against that respondent. These are matters which, in our view, are wholly beyond the purview of S. 48 of the Act, when it is remembered that the second respondent is not a financing bank and that the appellant is not an agriculturist to whom any advances in cash or kind had been made or could have been made so as to bring the appellant within the purview of S. 48(1(e) and consequentially of Explanation 1.The decision of the Patna High Court to the contrary is, therefore, not correct.
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SMT. SUVARNAMMA & ANR Vs. UNITED INDIA INSURANCE COMPANY LTD. & ANR | passed by the High Court of Karnataka at Bengaluru in Miscellaneous First Appeal No. 1045 of 2011. By the said judgment, the High Court has allowed the appeal filed by the Insurance Company exonerating it from the liability and set aside the judgment of the Motor Accident Claims Tribunal, Chickballapur awarding compensation to the claimants. 3. Pursuant to a complaint lodged on 13th July, 2004 by the appellant No. 1 herein in P.S. Cheluru stating that her husband Narasa Reddy left home at 7 p.m. on 12th July, 2004 for supplying milk to the Chakavelu Dairy and did not return. In the early morning on the next day it was learnt that her husband was crushed under a ground levelling tractor bearing registration No. TN 38 B 5899 at Brahamanara Tank, near Maddamma Temple on Chakavelu-Buddalavara Palli Road causing his instantaneous death on the spot due to high speed and negligent driving by the driver of the tractor. Accordingly, FIR has been registered in Crime No. 28/2004 under Sections 279 and 304(A), IPC. Subsequently, two claim petitions have been filed one by the wife and son of the deceased and the other by the father of the deceased, claiming compensation. 4. Learned Senior Civil Judge and Member of Motor Accident Claims Tribunal, Chickballapur framed the issues and arrived at a conclusion that the deceased died in the said motor accident due to rash and negligent driving of the respondent No. 2 herein (owner of the tractor). Accordingly, the Tribunal has awarded a compensation of Rs.4,31,000/- to the legal representatives of the deceased i.e. Appellants herein and Rs.10,000/- to the father of the deceased on the head of loss of love and affection. The tribunal has also directed that the Insurance Company (Respondent No.1) and owner of the tractor (Respondent No. 2) are jointly and severally liable to pay the said compensation amounts with an interest @ 6% p.a. w.e.f. the date of claim petition till the date of realization and they shall deposit the said amounts within three months from the date of its order. 5. Aggrieved by the judgment of the Tribunal awarding compensation to the appellants herein, the Insurance Company assailed the same before the High Court in Miscellaneous First Appeal No. 1045 of 2011. However, the High Court formed the view that the claim of legal heirs of the deceased was based on false grounds. By the judgment impugned herein, the High Court declared the judgment of the Tribunal in awarding compensation to the legal heirs of the deceased as erroneous and set aside the same absolving the insurance company from the liability. Consequently, the legal heirs of the deceased being appellants herein are before us in the present appeal. 6. We have heard learned counsel on either side and carefully perused the material on record. 7. Learned counsel appearing for the appellants submitted that the High Court has committed a serious error of law by disproving the specific finding recorded by the Tribunal based on the valid material on record. It is clear from the evidence of eyewitness Eashwara Reddy—PW3 who was a passerby at the relevant time that the accident occurred due to rash driving in negligent manner by the driver of the vehicle while the victim was walking on the footpath. In spite of cogent and reliable evidence adduced by PW3, the High Court discredited the same and wrongly presumed that the deceased was travelling in the tractor by sitting on its blade, though there was no evidence let in by the Insurance Company on that aspect. Even in the absence of examination of the driver of the tractor, though nothing was adversely elicited in the cross-examination of prosecution witnesses, the High Court ignoring the settled principles of law based its judgment only on certain presumptions, conjectures and surmises which requires interference of this Court. 8. Learned counsel appearing for the Insurance Company, however, supported the judgment of the High Court and submitted that the High Court was right in not relying on the evidence of PW3. The theory that the deceased was walking on the footpath at the time of accident, was introduced by the appellants only with a view to claim compensation. The High Court assessed the aforesaid circumstances in a proper perspective and rightly observed that the appellants are not entitled for compensation. 9. Having given our anxious consideration to the rival submissions advanced by the respective counsel and having perused the material on record. There is no dispute about the fact that at the time of occurrence the tractor which involved in the accident was being driven by the driver—owner in a rash and negligent manner. The evidence of PW3, an independent eyewitness to the incident, in all probabilities, makes it clear that the deceased had died because of the accident caused by the tractor that was being driven in a rash and negligent manner while the victim was going to his home as a pedestrian on the footpath. The FIR also discloses the very fact. At the same time, we find no material on record except the deposition of RW-1, the Divisional Manager of the Insurance Company, to establish that the victim was a passenger of the tractor. A mere statement that the victim was unlawfully travelling on the tractor, without any probable evidence cannot be taken into consideration, when the evidence to the contrary is available, in the form of deposition of an independent eyewitness. Notably enough, the driver-owner-insured of the tractor was not examined as witness. It is also manifest that he did not prefer appeal against the verdict of the Tribunal which in other words supports the case of appellants—claimants. Considering the circumstances stated above, in our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been reversed by the High Court by merely making sweeping observations in a casual manner without there being any reliable evidence. We, therefore, afford our concurrence to the judgment arrived at by the Tribunal. | 1[ds]9. Having given our anxious consideration to the rival submissions advanced by the respective counsel and having perused the material on record. There is no dispute about the fact that at the time of occurrence the tractor which involved in the accident was being driven by the driver—owner in a rash and negligent manner. The evidence of PW3, an independent eyewitness to the incident, in all probabilities, makes it clear that the deceased had died because of the accident caused by the tractor that was being driven in a rash and negligent manner while the victim was going to his home as a pedestrian on the footpath. The FIR also discloses the very fact. At the same time, we find no material on record except the deposition of RW-1, the Divisional Manager of the Insurance Company, to establish that the victim was a passenger of the tractor. A mere statement that the victim was unlawfully travelling on the tractor, without any probable evidence cannot be taken into consideration, when the evidence to the contrary is available, in the form of deposition of an independent eyewitness. Notably enough, the driver-owner-insured of the tractor was not examined as witness. It is also manifest that he did not prefer appeal against the verdict of the Tribunal which in other words supports the case of appellants—claimants. Considering the circumstances stated above, in our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been reversed by the High Court by merely making sweeping observations in a casual manner without there being any reliable evidence. We, therefore, afford our concurrence to the judgment arrived at by the Tribunal. | 1 | 1,117 | 309 | ### 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:
passed by the High Court of Karnataka at Bengaluru in Miscellaneous First Appeal No. 1045 of 2011. By the said judgment, the High Court has allowed the appeal filed by the Insurance Company exonerating it from the liability and set aside the judgment of the Motor Accident Claims Tribunal, Chickballapur awarding compensation to the claimants. 3. Pursuant to a complaint lodged on 13th July, 2004 by the appellant No. 1 herein in P.S. Cheluru stating that her husband Narasa Reddy left home at 7 p.m. on 12th July, 2004 for supplying milk to the Chakavelu Dairy and did not return. In the early morning on the next day it was learnt that her husband was crushed under a ground levelling tractor bearing registration No. TN 38 B 5899 at Brahamanara Tank, near Maddamma Temple on Chakavelu-Buddalavara Palli Road causing his instantaneous death on the spot due to high speed and negligent driving by the driver of the tractor. Accordingly, FIR has been registered in Crime No. 28/2004 under Sections 279 and 304(A), IPC. Subsequently, two claim petitions have been filed one by the wife and son of the deceased and the other by the father of the deceased, claiming compensation. 4. Learned Senior Civil Judge and Member of Motor Accident Claims Tribunal, Chickballapur framed the issues and arrived at a conclusion that the deceased died in the said motor accident due to rash and negligent driving of the respondent No. 2 herein (owner of the tractor). Accordingly, the Tribunal has awarded a compensation of Rs.4,31,000/- to the legal representatives of the deceased i.e. Appellants herein and Rs.10,000/- to the father of the deceased on the head of loss of love and affection. The tribunal has also directed that the Insurance Company (Respondent No.1) and owner of the tractor (Respondent No. 2) are jointly and severally liable to pay the said compensation amounts with an interest @ 6% p.a. w.e.f. the date of claim petition till the date of realization and they shall deposit the said amounts within three months from the date of its order. 5. Aggrieved by the judgment of the Tribunal awarding compensation to the appellants herein, the Insurance Company assailed the same before the High Court in Miscellaneous First Appeal No. 1045 of 2011. However, the High Court formed the view that the claim of legal heirs of the deceased was based on false grounds. By the judgment impugned herein, the High Court declared the judgment of the Tribunal in awarding compensation to the legal heirs of the deceased as erroneous and set aside the same absolving the insurance company from the liability. Consequently, the legal heirs of the deceased being appellants herein are before us in the present appeal. 6. We have heard learned counsel on either side and carefully perused the material on record. 7. Learned counsel appearing for the appellants submitted that the High Court has committed a serious error of law by disproving the specific finding recorded by the Tribunal based on the valid material on record. It is clear from the evidence of eyewitness Eashwara Reddy—PW3 who was a passerby at the relevant time that the accident occurred due to rash driving in negligent manner by the driver of the vehicle while the victim was walking on the footpath. In spite of cogent and reliable evidence adduced by PW3, the High Court discredited the same and wrongly presumed that the deceased was travelling in the tractor by sitting on its blade, though there was no evidence let in by the Insurance Company on that aspect. Even in the absence of examination of the driver of the tractor, though nothing was adversely elicited in the cross-examination of prosecution witnesses, the High Court ignoring the settled principles of law based its judgment only on certain presumptions, conjectures and surmises which requires interference of this Court. 8. Learned counsel appearing for the Insurance Company, however, supported the judgment of the High Court and submitted that the High Court was right in not relying on the evidence of PW3. The theory that the deceased was walking on the footpath at the time of accident, was introduced by the appellants only with a view to claim compensation. The High Court assessed the aforesaid circumstances in a proper perspective and rightly observed that the appellants are not entitled for compensation. 9. Having given our anxious consideration to the rival submissions advanced by the respective counsel and having perused the material on record. There is no dispute about the fact that at the time of occurrence the tractor which involved in the accident was being driven by the driver—owner in a rash and negligent manner. The evidence of PW3, an independent eyewitness to the incident, in all probabilities, makes it clear that the deceased had died because of the accident caused by the tractor that was being driven in a rash and negligent manner while the victim was going to his home as a pedestrian on the footpath. The FIR also discloses the very fact. At the same time, we find no material on record except the deposition of RW-1, the Divisional Manager of the Insurance Company, to establish that the victim was a passenger of the tractor. A mere statement that the victim was unlawfully travelling on the tractor, without any probable evidence cannot be taken into consideration, when the evidence to the contrary is available, in the form of deposition of an independent eyewitness. Notably enough, the driver-owner-insured of the tractor was not examined as witness. It is also manifest that he did not prefer appeal against the verdict of the Tribunal which in other words supports the case of appellants—claimants. Considering the circumstances stated above, in our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been reversed by the High Court by merely making sweeping observations in a casual manner without there being any reliable evidence. We, therefore, afford our concurrence to the judgment arrived at by the Tribunal.
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1
### Explanation:
9. Having given our anxious consideration to the rival submissions advanced by the respective counsel and having perused the material on record. There is no dispute about the fact that at the time of occurrence the tractor which involved in the accident was being driven by the driver—owner in a rash and negligent manner. The evidence of PW3, an independent eyewitness to the incident, in all probabilities, makes it clear that the deceased had died because of the accident caused by the tractor that was being driven in a rash and negligent manner while the victim was going to his home as a pedestrian on the footpath. The FIR also discloses the very fact. At the same time, we find no material on record except the deposition of RW-1, the Divisional Manager of the Insurance Company, to establish that the victim was a passenger of the tractor. A mere statement that the victim was unlawfully travelling on the tractor, without any probable evidence cannot be taken into consideration, when the evidence to the contrary is available, in the form of deposition of an independent eyewitness. Notably enough, the driver-owner-insured of the tractor was not examined as witness. It is also manifest that he did not prefer appeal against the verdict of the Tribunal which in other words supports the case of appellants—claimants. Considering the circumstances stated above, in our opinion, the conclusion reached by the Tribunal is a possible view, which could not have been reversed by the High Court by merely making sweeping observations in a casual manner without there being any reliable evidence. We, therefore, afford our concurrence to the judgment arrived at by the Tribunal.
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Aparna A.Shah Vs. M/S Sheth Developers P.Ltd | vs. Fine Tubes, (2007) 5 SCC 103 . 16) The above discussion with reference to Section 138 and the materials culled out from the statutory notice, reply, copy of the complaint, order, issuance of process etc., clearly show that only the drawer of the cheque being responsible for the same. 17) In addition to our conclusion, it is useful to refer some of the decisions rendered by various High Courts on this issue. 18) Learned Single Judge of the Madras High Court in Devendra Pundir vs. Rajendra Prasad Maurya, Proprietor, Satyamev Exports S/o. Sri Rama Shankar Maurya, 2008 Criminal Law Journal 777, following decisions of this Court, has concluded thus: 7. This Court is of the considered view that the above proposition of law laid down by the Honble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case. Even in this case, as already pointed out, the first accused is admittedly the sole proprietrix of the concern namely, Kamakshi Enterprises and as such, the question of the second accused to be vicariously held liable for the offence said to have been committed by the first accused under Section 138 of the Negotiable Instruments Act not at all arise. After saying so, learned Single Judge, quashed the proceedings initiated against the petitioner therein and permitted the Judicial Magistrate to proceed and expedite the trial in respect of others. 19) In Gita Berry vs. Genesis Educational Foundation, 151 (2008) DLT 155 , the petitioner therein was wife and she filed a petition under Section 482 of the Code seeking quashing of the complaint filed under Section 138 of the N.I. Act. The case of the petitioner therein was that the offence under Section 138 of the Act cannot be said to have been made out against her only on the ground that she was a joint account holder along with her husband. It was pointed out that she has neither drawn nor issued the cheque in question and, therefore, according to her, the complaint against her was not maintainable. Learned Single Judge of the High Court of Delhi, after noting that the complaint was only under Section 138 of the Act and not under Section 420 IPC and pointing out that nothing was elicited from the complainant to the effect that the petitioner was responsible for the cheque in question, quashed the proceedings insofar as the petitioner therein. 20) In Smt. Bandeep Kaur vs. S. Avneet Singh, (2008) 2 PLR 796, in a similar situation, learned Single Judge of the Punjab and Haryana High Court held that in case the drawer of a cheque fails to make the payment on receipt of a notice, then the provisions of Section 138 of the Act could be attracted against him only. Learned Single Judge further held that though the cheque was drawn to a joint bank account which is to be operated by anyone, i.e., the petitioner or by her husband, but the controversial document is the cheque, the liability regarding dishonouring of which can be fastened on the drawer of it. After saying so, learned Single Judge accepted the plea of the petitioner and quashed the proceedings insofar as it relates to her and permitted the complainant to proceed further insofar as against others. 21) In the light of the principles as discussed in the earlier paras, we fully endorse the view expressed by the learned Judges of the Madras, Delhi and Punjab & Haryana High Courts. 22) In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 23) We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case except in case of Section 141 of the N.I. Act be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage. 24) Under these circumstances, the | 1[ds]we are concerned with criminal liability on account of dishonour of a cheque. It primarily falls on the drawer, if it is a Company, then Drawer Company and is extended to the officers of the company. The normal rule in the cases involving criminal liability is against vicarious liability. To put it clear, no one is to be held criminally liable for an act of another. This normal rule is, however, subject to exception on account of specific provision being made in statutes extending liability to others. For example, Section 141 of the N.I. Act is an instance of specific provision that in case an offence under Section 138 is committed by a company, the criminal liability for dishonour of a cheque will extend to the officers of the company. As a matter of fact, Section 141 contains conditions which have to be satisfied before the liability can be extended. Inasmuch as the provision creates a criminal liability, the conditions have to be strictly complied with. In other words, the persons who had nothing to do with the matter, need not be roped in. A company being a juristic person, all its deeds and functions are the result of acts of others. Therefore, the officers of the company, who are responsible for the acts done in the name of the company, are sought to be made personally liable for the acts which result in criminal action being taken against the company. In other words, it makes every person who, at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of business of the company, as well as the company, liable for the offence. It is true that the proviso to sub-section enables certain persons to prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent commission of the offence. The liability under Section 141 of the N.I. Act is sought to be fastened vicariously on a person connected with the company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liabilitywe hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque23) We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case except in case of Section 141 of the N.I. Act be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage. | 1 | 4,404 | 840 | ### 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:
vs. Fine Tubes, (2007) 5 SCC 103 . 16) The above discussion with reference to Section 138 and the materials culled out from the statutory notice, reply, copy of the complaint, order, issuance of process etc., clearly show that only the drawer of the cheque being responsible for the same. 17) In addition to our conclusion, it is useful to refer some of the decisions rendered by various High Courts on this issue. 18) Learned Single Judge of the Madras High Court in Devendra Pundir vs. Rajendra Prasad Maurya, Proprietor, Satyamev Exports S/o. Sri Rama Shankar Maurya, 2008 Criminal Law Journal 777, following decisions of this Court, has concluded thus: 7. This Court is of the considered view that the above proposition of law laid down by the Honble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case. Even in this case, as already pointed out, the first accused is admittedly the sole proprietrix of the concern namely, Kamakshi Enterprises and as such, the question of the second accused to be vicariously held liable for the offence said to have been committed by the first accused under Section 138 of the Negotiable Instruments Act not at all arise. After saying so, learned Single Judge, quashed the proceedings initiated against the petitioner therein and permitted the Judicial Magistrate to proceed and expedite the trial in respect of others. 19) In Gita Berry vs. Genesis Educational Foundation, 151 (2008) DLT 155 , the petitioner therein was wife and she filed a petition under Section 482 of the Code seeking quashing of the complaint filed under Section 138 of the N.I. Act. The case of the petitioner therein was that the offence under Section 138 of the Act cannot be said to have been made out against her only on the ground that she was a joint account holder along with her husband. It was pointed out that she has neither drawn nor issued the cheque in question and, therefore, according to her, the complaint against her was not maintainable. Learned Single Judge of the High Court of Delhi, after noting that the complaint was only under Section 138 of the Act and not under Section 420 IPC and pointing out that nothing was elicited from the complainant to the effect that the petitioner was responsible for the cheque in question, quashed the proceedings insofar as the petitioner therein. 20) In Smt. Bandeep Kaur vs. S. Avneet Singh, (2008) 2 PLR 796, in a similar situation, learned Single Judge of the Punjab and Haryana High Court held that in case the drawer of a cheque fails to make the payment on receipt of a notice, then the provisions of Section 138 of the Act could be attracted against him only. Learned Single Judge further held that though the cheque was drawn to a joint bank account which is to be operated by anyone, i.e., the petitioner or by her husband, but the controversial document is the cheque, the liability regarding dishonouring of which can be fastened on the drawer of it. After saying so, learned Single Judge accepted the plea of the petitioner and quashed the proceedings insofar as it relates to her and permitted the complainant to proceed further insofar as against others. 21) In the light of the principles as discussed in the earlier paras, we fully endorse the view expressed by the learned Judges of the Madras, Delhi and Punjab & Haryana High Courts. 22) In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 23) We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case except in case of Section 141 of the N.I. Act be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage. 24) Under these circumstances, the
### Response:
1
### Explanation:
we are concerned with criminal liability on account of dishonour of a cheque. It primarily falls on the drawer, if it is a Company, then Drawer Company and is extended to the officers of the company. The normal rule in the cases involving criminal liability is against vicarious liability. To put it clear, no one is to be held criminally liable for an act of another. This normal rule is, however, subject to exception on account of specific provision being made in statutes extending liability to others. For example, Section 141 of the N.I. Act is an instance of specific provision that in case an offence under Section 138 is committed by a company, the criminal liability for dishonour of a cheque will extend to the officers of the company. As a matter of fact, Section 141 contains conditions which have to be satisfied before the liability can be extended. Inasmuch as the provision creates a criminal liability, the conditions have to be strictly complied with. In other words, the persons who had nothing to do with the matter, need not be roped in. A company being a juristic person, all its deeds and functions are the result of acts of others. Therefore, the officers of the company, who are responsible for the acts done in the name of the company, are sought to be made personally liable for the acts which result in criminal action being taken against the company. In other words, it makes every person who, at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of business of the company, as well as the company, liable for the offence. It is true that the proviso to sub-section enables certain persons to prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent commission of the offence. The liability under Section 141 of the N.I. Act is sought to be fastened vicariously on a person connected with the company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liabilitywe hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque23) We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case except in case of Section 141 of the N.I. Act be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage.
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Kapri International (P) Ltd Vs. Commissioner of Wealth Tax | can construe the language in accord with the object sought to be achieved. Going by the plain language it is clear that the learned Senior counsel appearing on behalf of the appellant is only partially correct in that user of the building is established on the facts of the case and, therefore, the asset of the company is being used productively and not otherwise. However, super-added to this condition is another condition, namely, that such user must be "by the assessee". Not only must it be by the assessee but it must also be "for the purpose of its business". It is clear on the facts here that the appellant before us and M/s Dior International Pvt. Ltd are doing their own business and are separately assessed as such. Mr. Guru Krishan Kumar, learned Senior counsel is right in contending that on facts the charging of Rs. 20,000/- per month as licence fee by the appellant assessee from M/s Dior International Pvt. Ltd. changes the complexion of the case. It is clear that once this is done, the two companies, though under the same management, are treating each other as separate entities. Also, he correctly pointed out that for the job work done by M/s Dior International Pvt. Ltd., M/s Dior International Pvt. Ltd. was charging the assessee company and this again established that two companies preserved their individual corporate personalities so far as the present transaction is concerned. 7. Shri Sabharwal cited a judgment of this Court reported in 53 ITR 140 (SC) in the case of Commissioner of Income Tax, Kerala v. Malayalam Plantations Ltd., and brought to our notice a passage at page 150 which reads as follows:- "The aforesaid discussion leads to the following result: the expression "for the purpose of the business" is wider in scope than the expression "for the purpose of earning profits". Its range is wide: it may take in not only the day to day running of a business but also the rationalisation of its administration and modernisation of its machinery; it may include measures for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile title; it may also comprehend payment of statutory dues and taxes imposed as a pre-condition to commence or for carrying on a business; it may comprehend many other acts incidental to the carrying on of a business. However wide the meaning of the expression may be, its limits are implicit in it. The purpose shall be for the purpose of the business, that is to say the expenditure incurred shall be for the carrying on of the business and the assessee shall incur it in his capacity as a person carrying on the business." 8. It is true that the expression "for the purpose of the business" may be wide but as the judgment says its limits are also clear. The expenditure incurred therefore, will have to be for the carrying on of the business and the assessee shall incur it in its capacity as a person carrying on the business. On facts here it is clear that the assessee, namely, M/s. Kapri International (P) Ltd., the appellant before us, has not incurred anything in its capacity as the person carrying on the business. On the other hand, it is clear on facts that it is M/s Dior International Pvt. Ltd. in its separate individual capacity that is carrying on its own business. This case is, therefore, clearly distinguishable on facts. 9. He also cited before us a judgment reported in 20 ITR 451 (SC) in the case of Commissioner of Excess Profits Tax, Bombay City v. Shri Lakshmi Silk Mills Ltd. where the controversy was whether, when a dyeing plant of a company remains idle because of difficulty in obtaining raw material, and it was temporarily let out, the amount received in the hands of such company could be treated as business income. The passage cited at page 455-456 of the report again makes it clear that this judgment does not in any manner further the argument of the assessee in the present case. It goes as far as saying that on the facts here Rs. 20,000/- licence fee per month ought to be treated as business income. This may well be correct but as we have pointed out herein above, this fact does not further the assessees case in that the very factum of charging Rs. 20,000/- per month makes it clear that the assessee treated itself as a corporate personality separate from its subsidiary. 10. Learned counsel for the appellant then cited a judgment of this Court reported in 288 ITR 1 (SC), namely, S.A. Builders Ltd. v. Commissioner of Income Tax in which a question arose in the context of Section 36 of the Income Tax Act as to whether an interest free loan given to a sister concern can be said to be "for the purpose of business". This does not take the assessee very much further. An interest free loan may well on facts be treated to be "for the purposes of business" so far as Section 36 of the Income Tax Act is concerned. However, on facts here we are concerned with a very different provision in which user of premises has to be by the assessee itself and not by its sister concern. This case is also distinguishable on facts. 11. Learned counsel also cited a full Bench judgment of the Madras High Court in the case of Commissioner of Wealth Tax v. Fagun Co. P. Ltd. reported in 286 ITR 297 (FB) and drew our attention to a passage at page 313-314 of the report. In that case, assets were let out by a leasing company doing leasing business. On the facts therefore, it was held that such leased assets would be treated as being for the purpose of business in that case. This judgment also does not carry the appellants case any further. | 0[ds]8. It is true that the expression "for the purpose of the business" may be wide but as the judgment says its limits are also clear. The expenditure incurred therefore, will have to be for the carrying on of the business and the assessee shall incur it in its capacity as a person carrying on the business. On facts here it is clear that the assessee, namely, M/s. Kapri International (P) Ltd., the appellant before us, has not incurred anything in its capacity as the person carrying on the business. On the other hand, it is clear on facts that it is M/s Dior International Pvt. Ltd. in its separate individual capacity that is carrying on its own business. This case is, therefore, clearly distinguishable onpassage cited at pageof the report again makes it clear that this judgment does not in any manner further the argument of the assessee in the present case. It goes as far as saying that on the facts here Rs. 20,000/licence fee per month ought to be treated as business income. This may well be correct but as we have pointed out herein above, this fact does not further the assessees case in that the very factum of charging Rs. 20,000/per month makes it clear that the assessee treated itself as a corporate personality separate from itsthat case, assets were let out by a leasing company doing leasing business. On the facts therefore, it was held that such leased assets would be treated as being for the purpose of business in that case. This judgment also does not carry the appellants case anydoes not take the assessee very much further. An interest free loan may well on facts be treated to be "for the purposes of business" so far as Section 36 of the Income Tax Act is concerned. However, on facts here we are concerned with a very different provision in which user of premises has to be by the assessee itself and not by its sister concern. This case is also distinguishable on facts. | 0 | 3,030 | 380 | ### 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:
can construe the language in accord with the object sought to be achieved. Going by the plain language it is clear that the learned Senior counsel appearing on behalf of the appellant is only partially correct in that user of the building is established on the facts of the case and, therefore, the asset of the company is being used productively and not otherwise. However, super-added to this condition is another condition, namely, that such user must be "by the assessee". Not only must it be by the assessee but it must also be "for the purpose of its business". It is clear on the facts here that the appellant before us and M/s Dior International Pvt. Ltd are doing their own business and are separately assessed as such. Mr. Guru Krishan Kumar, learned Senior counsel is right in contending that on facts the charging of Rs. 20,000/- per month as licence fee by the appellant assessee from M/s Dior International Pvt. Ltd. changes the complexion of the case. It is clear that once this is done, the two companies, though under the same management, are treating each other as separate entities. Also, he correctly pointed out that for the job work done by M/s Dior International Pvt. Ltd., M/s Dior International Pvt. Ltd. was charging the assessee company and this again established that two companies preserved their individual corporate personalities so far as the present transaction is concerned. 7. Shri Sabharwal cited a judgment of this Court reported in 53 ITR 140 (SC) in the case of Commissioner of Income Tax, Kerala v. Malayalam Plantations Ltd., and brought to our notice a passage at page 150 which reads as follows:- "The aforesaid discussion leads to the following result: the expression "for the purpose of the business" is wider in scope than the expression "for the purpose of earning profits". Its range is wide: it may take in not only the day to day running of a business but also the rationalisation of its administration and modernisation of its machinery; it may include measures for the preservation of the business and for the protection of its assets and property from expropriation, coercive process or assertion of hostile title; it may also comprehend payment of statutory dues and taxes imposed as a pre-condition to commence or for carrying on a business; it may comprehend many other acts incidental to the carrying on of a business. However wide the meaning of the expression may be, its limits are implicit in it. The purpose shall be for the purpose of the business, that is to say the expenditure incurred shall be for the carrying on of the business and the assessee shall incur it in his capacity as a person carrying on the business." 8. It is true that the expression "for the purpose of the business" may be wide but as the judgment says its limits are also clear. The expenditure incurred therefore, will have to be for the carrying on of the business and the assessee shall incur it in its capacity as a person carrying on the business. On facts here it is clear that the assessee, namely, M/s. Kapri International (P) Ltd., the appellant before us, has not incurred anything in its capacity as the person carrying on the business. On the other hand, it is clear on facts that it is M/s Dior International Pvt. Ltd. in its separate individual capacity that is carrying on its own business. This case is, therefore, clearly distinguishable on facts. 9. He also cited before us a judgment reported in 20 ITR 451 (SC) in the case of Commissioner of Excess Profits Tax, Bombay City v. Shri Lakshmi Silk Mills Ltd. where the controversy was whether, when a dyeing plant of a company remains idle because of difficulty in obtaining raw material, and it was temporarily let out, the amount received in the hands of such company could be treated as business income. The passage cited at page 455-456 of the report again makes it clear that this judgment does not in any manner further the argument of the assessee in the present case. It goes as far as saying that on the facts here Rs. 20,000/- licence fee per month ought to be treated as business income. This may well be correct but as we have pointed out herein above, this fact does not further the assessees case in that the very factum of charging Rs. 20,000/- per month makes it clear that the assessee treated itself as a corporate personality separate from its subsidiary. 10. Learned counsel for the appellant then cited a judgment of this Court reported in 288 ITR 1 (SC), namely, S.A. Builders Ltd. v. Commissioner of Income Tax in which a question arose in the context of Section 36 of the Income Tax Act as to whether an interest free loan given to a sister concern can be said to be "for the purpose of business". This does not take the assessee very much further. An interest free loan may well on facts be treated to be "for the purposes of business" so far as Section 36 of the Income Tax Act is concerned. However, on facts here we are concerned with a very different provision in which user of premises has to be by the assessee itself and not by its sister concern. This case is also distinguishable on facts. 11. Learned counsel also cited a full Bench judgment of the Madras High Court in the case of Commissioner of Wealth Tax v. Fagun Co. P. Ltd. reported in 286 ITR 297 (FB) and drew our attention to a passage at page 313-314 of the report. In that case, assets were let out by a leasing company doing leasing business. On the facts therefore, it was held that such leased assets would be treated as being for the purpose of business in that case. This judgment also does not carry the appellants case any further.
### Response:
0
### Explanation:
8. It is true that the expression "for the purpose of the business" may be wide but as the judgment says its limits are also clear. The expenditure incurred therefore, will have to be for the carrying on of the business and the assessee shall incur it in its capacity as a person carrying on the business. On facts here it is clear that the assessee, namely, M/s. Kapri International (P) Ltd., the appellant before us, has not incurred anything in its capacity as the person carrying on the business. On the other hand, it is clear on facts that it is M/s Dior International Pvt. Ltd. in its separate individual capacity that is carrying on its own business. This case is, therefore, clearly distinguishable onpassage cited at pageof the report again makes it clear that this judgment does not in any manner further the argument of the assessee in the present case. It goes as far as saying that on the facts here Rs. 20,000/licence fee per month ought to be treated as business income. This may well be correct but as we have pointed out herein above, this fact does not further the assessees case in that the very factum of charging Rs. 20,000/per month makes it clear that the assessee treated itself as a corporate personality separate from itsthat case, assets were let out by a leasing company doing leasing business. On the facts therefore, it was held that such leased assets would be treated as being for the purpose of business in that case. This judgment also does not carry the appellants case anydoes not take the assessee very much further. An interest free loan may well on facts be treated to be "for the purposes of business" so far as Section 36 of the Income Tax Act is concerned. However, on facts here we are concerned with a very different provision in which user of premises has to be by the assessee itself and not by its sister concern. This case is also distinguishable on facts.
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Income Tax Officer Vs. Ch. Atchaiah | may determine the tax payable by the firm itself on the basis of the total income of the firm, or (b) if, in his opinion, the aggregate amount o f the tax payable by the firm if it were assessed as a registered firm and the tax payable by the partners individually if the firm were so assessed would be greater than the aggregate amount of the tax payable by the firm under clause (a) and the tax which would be payable by the partners individually, may proceed to make the assessment under sub-section (1) of section 182 as if the firm were a registered firm; and, where the procedure specified in this clause is applied to any unregistered firm, the provisions of sub-sections (2), (3) and (4) of section 182 shall apply thereto as they apply in relation to a registered firm." * 8. It may be mentioned that Section 183 corresponded to Section 23(5) (b) of the 1922 Act. The 1922 Act not only provided an option to the Income Tax Officer in the matter of firm and Association of Persons under Section 3 but also expressly enabled him to assess an unregistered firm as a registered firm [Section 23(5)(b)], if by doing so, more tax accrued to the State. The 1961 Act has omitted the first option, while retaining the second. 9. In this connection, it would be relevant to notice the relevant provisions of the draft Bill proposed by the Law Commission in its XIIth Report, which constitutes the basis for the 1961 Act. Clause (27) of Section 2 of the draft (definition of "person") did expressly provide an option similar to the one contained in Section 3 of the 1922 Act. Clause 27 read thus: "(27) Person includes-- (i) an individual, (ii) a Hindu undivided family, (iii)a company, (iv) a firm or other association of persons, whether incorporated or not, or the partners of the firm or the members of the association individually, (v) a body of individuals, whether incorporated or not, (vi) a local authority, and (vii)every artificial juridical person, not falling within sub-clauses (i) to (vi)" * (Emphasis added) In the "Notes on Clauses" appended to the draft, the Commission stated: "27. Person. The definition of person in existing section 2(9) has been amplified. The existing definition includes (a) Hindu undivided family and (b) a local authority. The General Clauses Act, defines person as including a company or association or body of individuals whether incorporated or not. The charging section (section 3) of the Income-tax Act enumerates the units for taxation as individual, Hindu undivided family, company, local authority, firm and other association of persons, or the partners of a firm or the members of the association individually. Section 4 of the Act refers to a person. It seems desirable to have a comprehensive definition of the word person in the Act so as to cover all entities mentioned in -- (i) the existing definition [S.2(9)]. (ii) the existing charging provisions [sections 3 and 4], and (iii) the General Clauses Act. The definition has therefore been amplified on the above lines." * 10. The Parliament, however, chose not to accept the suggested definition in total it deleted the words indicating the option. The Committee, which drafted the draft Bill comprised Sri P.Satyanarayana Rao, Sri G.N.Joshi and Sri N.A.Palkhivala, who was specifically appointed as a member for the purpose of the revision of the Income Tax Act. [Extracts are taken from the XIIth Report of the Law Com mission of India, published by Government of India, Ministry of Law.] 11. This question has also been troubling the High Courts in the country. As a matter of fact, Patna and Andhra Pradesh High Courts have taken different views. Be that as it may, we may mention that the Patna High Court in Mahendra Kumar Agarwal v. Income Tax Officer [ 1976 (103) ITR 688 ], Punjab and Haryana High Court in Rodamal Lalchand v. Commissioner of Income Tax [ 1977 (109) ITR 7 ], Andhra Pradesh High Court in Choudry [supra] and Delhi High Court in Punjab Cloth Stores v. Commissioner of Income Tax [ 1980 (121) ITR 604 ] have taken the view which we have taken. On their other hand, Madras High Court in Commissioner of Income Tax v. Blue Mountain Engineering Corporation [ 1978 (112) ITR 839 ] and Patna High Court in its earlier decision in Commissioner of Income Tax v. Pure Nichitpur Colliery Company [ 1975 (101) ITR 79 ] have taken the opposite view.The Andhra Pradesh High Court first expressed the other view, then in Choudry it took the view which we have taken and the again in B.R. Constructions (F.B.), it has gone back to the other view and reiterated the view taken in the judgment under appeal. In Ramanlal Madanlal v. Commissioner of Income Tax [ 1979 (116) ITR 657 ], Sabyasachi M ukharji, J., speaking for a Bench of the Calcutta High Court, recognized the distinction in the language employed in Section 3 of the 1922 Act and Section 4 of the present Act but that was a case of an unregistered firm where the Income Tax Officer had assessed the incomes in the hands of the partners individually. In such a situation, the learned Judge held, the Income Tax Officer cannot, at the same time, bring the unregistered firm to tax in respect of the very same income. Section 183 was also referred to in that connection. 12. The decision of the High Courts taking the contrary view appears to have been influenced largely by the decision s of this Court in Commissioner of Income Tax v. Kanpur Coal Syndicate [ 1964 (53) ITR 225 ] and Commissioner of Income Tax v. Murlidhar Jhawar and Purna Ginning and Pressing Factory [ 1966 (60) ITR 95 ] which were rendered under the 1922 Act and have not given due weight to the marked difference in the language of the relevant provisions in the two enactments. 13. | 1[ds]We are of the opinion that under the present Act, the Income Tax Officer has no option like the one he had under the 1922 Act. He can, and he must, tax the right person and the right person alone. By "right person", we mean the person who is liable to be taxed, according to law, with respect to a particular income. The expression "wrong person" is obviously used as the opposite of the express ion "right person". Merely because a wrong person is taxed with respect to a particular income, the Assessing Officer is not precluded from taxing the right person with respect to that income. This is so irrespective of the fact which course is more beneficial to the Revenue. In our opinion, the language of the relevant provisions of the present Act is quite clear and unambiguous. Section 183 shows that where the Parliament intended to provide an option, it provided so expressly. Where a person is taxed wrongfully, he is no doubt entitled to be relieved of it in accordance with law* but that is a different matter altogether. The person lawfully liable to be taxed can claim no immunity because the Assessing Officer [In come Tax Officer] has taxed the said income in the hands of another person contrary to lawA comparison of the provisions of both enactments immediately bring out the difference between them. Section 3 of the 1922 Act provided that in respect of the total income of a firm or an Association of Persons, the income tax shall be charged either on the firm or the Association of Persons or on the partners of the firm or on the members of the Association of Persons individually. It is evident that this option was to be exercised by him keeping in view of the interest of Revenue. Whichever course was more advantageous to Revenue, he was entitled to follow it. In such a situation, it was generally held that once the Income Tax Officer opted for one course, the other course was barred to him. But no such option is provided to him under the present Act. Section 4 extracted hereinabove says that income tax shall be charged on the total income "of every person" and the expression "person" is defined in clause (31) of Section 2. The definition merely says that expression "person" includes inter alia a firm and an Association of Persons or a body of individuals whether incorporated or not. There are no words in the present Act which empower the Income Tax Officer or give him an option to tax either the Association of Persons or its members individually or for that matter to tax the firm or its partners individually. If it is the income of the Association of Persons in law, Association of Persons alone has to be taxed; the members of the Association of Persons cannot be taxed individually in respect of the income of the Association of Persons. Consideration of the interest of Revenue has no place in this scheme. When Section 4(1) of the present Act speaks of levy of income tax on the total income of every person, it necessary means the person who is liable to pay income tax in respect of that total income according to law. The tax has to be levied on that person, whether an individual, Hindu Undivided Family, Company, Firm, Association of Persons/BOP, a local authority or an artificial juridical person. From this, it follows that if income of A is taxed in the hands of B, A may be legitimately aggrieved but that does not mean that B is exonerated of his liability on that account. B cannot say, when he is sought to be taxed in respect of the total income which is lawfully taxable in his hands, that since the Income Tax Officer has taxed very same income in the hands of A, he himself cannot be taxed with respect to the said total income. This is not only logical but is consistent with the provisions of the Act. In this connection, it may be pointed out that where the Parliament wanted to provide an option, a discretion, to the Income Tax Officer, it has provided so expressly. Section 183 [which has since been omitted with effect from April 1, 1993 by the Finance Act, 1992] provided that in the case of an unregistered firm, it is open to the Income Tax Officer to treat it, and make an assessment on it, as if it were a registered firm, if such a course was more beneficial to Revenue - in the sense that such a course would fetch more tax to the public exchequerIt may be mentioned that Section 183 corresponded to Section 23(5) (b) of the 1922 Act. The 1922 Act not only provided an option to the Income Tax Officer in the matter of firm and Association of Persons under Section 3 but also expressly enabled him to assess an unregistered firm as a registered firm [Section 23(5)(b)], if by doing so, more tax accrued to the State. The 1961 Act has omitted the first option, while retaining the second | 1 | 4,082 | 969 | ### 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:
may determine the tax payable by the firm itself on the basis of the total income of the firm, or (b) if, in his opinion, the aggregate amount o f the tax payable by the firm if it were assessed as a registered firm and the tax payable by the partners individually if the firm were so assessed would be greater than the aggregate amount of the tax payable by the firm under clause (a) and the tax which would be payable by the partners individually, may proceed to make the assessment under sub-section (1) of section 182 as if the firm were a registered firm; and, where the procedure specified in this clause is applied to any unregistered firm, the provisions of sub-sections (2), (3) and (4) of section 182 shall apply thereto as they apply in relation to a registered firm." * 8. It may be mentioned that Section 183 corresponded to Section 23(5) (b) of the 1922 Act. The 1922 Act not only provided an option to the Income Tax Officer in the matter of firm and Association of Persons under Section 3 but also expressly enabled him to assess an unregistered firm as a registered firm [Section 23(5)(b)], if by doing so, more tax accrued to the State. The 1961 Act has omitted the first option, while retaining the second. 9. In this connection, it would be relevant to notice the relevant provisions of the draft Bill proposed by the Law Commission in its XIIth Report, which constitutes the basis for the 1961 Act. Clause (27) of Section 2 of the draft (definition of "person") did expressly provide an option similar to the one contained in Section 3 of the 1922 Act. Clause 27 read thus: "(27) Person includes-- (i) an individual, (ii) a Hindu undivided family, (iii)a company, (iv) a firm or other association of persons, whether incorporated or not, or the partners of the firm or the members of the association individually, (v) a body of individuals, whether incorporated or not, (vi) a local authority, and (vii)every artificial juridical person, not falling within sub-clauses (i) to (vi)" * (Emphasis added) In the "Notes on Clauses" appended to the draft, the Commission stated: "27. Person. The definition of person in existing section 2(9) has been amplified. The existing definition includes (a) Hindu undivided family and (b) a local authority. The General Clauses Act, defines person as including a company or association or body of individuals whether incorporated or not. The charging section (section 3) of the Income-tax Act enumerates the units for taxation as individual, Hindu undivided family, company, local authority, firm and other association of persons, or the partners of a firm or the members of the association individually. Section 4 of the Act refers to a person. It seems desirable to have a comprehensive definition of the word person in the Act so as to cover all entities mentioned in -- (i) the existing definition [S.2(9)]. (ii) the existing charging provisions [sections 3 and 4], and (iii) the General Clauses Act. The definition has therefore been amplified on the above lines." * 10. The Parliament, however, chose not to accept the suggested definition in total it deleted the words indicating the option. The Committee, which drafted the draft Bill comprised Sri P.Satyanarayana Rao, Sri G.N.Joshi and Sri N.A.Palkhivala, who was specifically appointed as a member for the purpose of the revision of the Income Tax Act. [Extracts are taken from the XIIth Report of the Law Com mission of India, published by Government of India, Ministry of Law.] 11. This question has also been troubling the High Courts in the country. As a matter of fact, Patna and Andhra Pradesh High Courts have taken different views. Be that as it may, we may mention that the Patna High Court in Mahendra Kumar Agarwal v. Income Tax Officer [ 1976 (103) ITR 688 ], Punjab and Haryana High Court in Rodamal Lalchand v. Commissioner of Income Tax [ 1977 (109) ITR 7 ], Andhra Pradesh High Court in Choudry [supra] and Delhi High Court in Punjab Cloth Stores v. Commissioner of Income Tax [ 1980 (121) ITR 604 ] have taken the view which we have taken. On their other hand, Madras High Court in Commissioner of Income Tax v. Blue Mountain Engineering Corporation [ 1978 (112) ITR 839 ] and Patna High Court in its earlier decision in Commissioner of Income Tax v. Pure Nichitpur Colliery Company [ 1975 (101) ITR 79 ] have taken the opposite view.The Andhra Pradesh High Court first expressed the other view, then in Choudry it took the view which we have taken and the again in B.R. Constructions (F.B.), it has gone back to the other view and reiterated the view taken in the judgment under appeal. In Ramanlal Madanlal v. Commissioner of Income Tax [ 1979 (116) ITR 657 ], Sabyasachi M ukharji, J., speaking for a Bench of the Calcutta High Court, recognized the distinction in the language employed in Section 3 of the 1922 Act and Section 4 of the present Act but that was a case of an unregistered firm where the Income Tax Officer had assessed the incomes in the hands of the partners individually. In such a situation, the learned Judge held, the Income Tax Officer cannot, at the same time, bring the unregistered firm to tax in respect of the very same income. Section 183 was also referred to in that connection. 12. The decision of the High Courts taking the contrary view appears to have been influenced largely by the decision s of this Court in Commissioner of Income Tax v. Kanpur Coal Syndicate [ 1964 (53) ITR 225 ] and Commissioner of Income Tax v. Murlidhar Jhawar and Purna Ginning and Pressing Factory [ 1966 (60) ITR 95 ] which were rendered under the 1922 Act and have not given due weight to the marked difference in the language of the relevant provisions in the two enactments. 13.
### Response:
1
### Explanation:
We are of the opinion that under the present Act, the Income Tax Officer has no option like the one he had under the 1922 Act. He can, and he must, tax the right person and the right person alone. By "right person", we mean the person who is liable to be taxed, according to law, with respect to a particular income. The expression "wrong person" is obviously used as the opposite of the express ion "right person". Merely because a wrong person is taxed with respect to a particular income, the Assessing Officer is not precluded from taxing the right person with respect to that income. This is so irrespective of the fact which course is more beneficial to the Revenue. In our opinion, the language of the relevant provisions of the present Act is quite clear and unambiguous. Section 183 shows that where the Parliament intended to provide an option, it provided so expressly. Where a person is taxed wrongfully, he is no doubt entitled to be relieved of it in accordance with law* but that is a different matter altogether. The person lawfully liable to be taxed can claim no immunity because the Assessing Officer [In come Tax Officer] has taxed the said income in the hands of another person contrary to lawA comparison of the provisions of both enactments immediately bring out the difference between them. Section 3 of the 1922 Act provided that in respect of the total income of a firm or an Association of Persons, the income tax shall be charged either on the firm or the Association of Persons or on the partners of the firm or on the members of the Association of Persons individually. It is evident that this option was to be exercised by him keeping in view of the interest of Revenue. Whichever course was more advantageous to Revenue, he was entitled to follow it. In such a situation, it was generally held that once the Income Tax Officer opted for one course, the other course was barred to him. But no such option is provided to him under the present Act. Section 4 extracted hereinabove says that income tax shall be charged on the total income "of every person" and the expression "person" is defined in clause (31) of Section 2. The definition merely says that expression "person" includes inter alia a firm and an Association of Persons or a body of individuals whether incorporated or not. There are no words in the present Act which empower the Income Tax Officer or give him an option to tax either the Association of Persons or its members individually or for that matter to tax the firm or its partners individually. If it is the income of the Association of Persons in law, Association of Persons alone has to be taxed; the members of the Association of Persons cannot be taxed individually in respect of the income of the Association of Persons. Consideration of the interest of Revenue has no place in this scheme. When Section 4(1) of the present Act speaks of levy of income tax on the total income of every person, it necessary means the person who is liable to pay income tax in respect of that total income according to law. The tax has to be levied on that person, whether an individual, Hindu Undivided Family, Company, Firm, Association of Persons/BOP, a local authority or an artificial juridical person. From this, it follows that if income of A is taxed in the hands of B, A may be legitimately aggrieved but that does not mean that B is exonerated of his liability on that account. B cannot say, when he is sought to be taxed in respect of the total income which is lawfully taxable in his hands, that since the Income Tax Officer has taxed very same income in the hands of A, he himself cannot be taxed with respect to the said total income. This is not only logical but is consistent with the provisions of the Act. In this connection, it may be pointed out that where the Parliament wanted to provide an option, a discretion, to the Income Tax Officer, it has provided so expressly. Section 183 [which has since been omitted with effect from April 1, 1993 by the Finance Act, 1992] provided that in the case of an unregistered firm, it is open to the Income Tax Officer to treat it, and make an assessment on it, as if it were a registered firm, if such a course was more beneficial to Revenue - in the sense that such a course would fetch more tax to the public exchequerIt may be mentioned that Section 183 corresponded to Section 23(5) (b) of the 1922 Act. The 1922 Act not only provided an option to the Income Tax Officer in the matter of firm and Association of Persons under Section 3 but also expressly enabled him to assess an unregistered firm as a registered firm [Section 23(5)(b)], if by doing so, more tax accrued to the State. The 1961 Act has omitted the first option, while retaining the second
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Chief Administrator Huda Vs. Shakuntla Devi | He also submitted that cogent material was placed before the State Commission to prove the escalation in the cost of construction between 1989 and 2000.10. The avowed object of the Consumer Protection Act, 1986 is to provide for better protection of the interest of consumers. The statement of the objects and reasons, inter alia, provides for a speedy and simple redressal to consumer disputes. The quasi judicial bodies at the District, State and Central levels were empowered to give relief to the consumers and award, wherever appropriate, compensation to consumers.11. Section 14 (1) (d) of the Act which is relevant for the adjudication of the dispute in this case is as follows:"14. Finding of the District Forum.-(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely:.......(d)to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party."12. The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of the opposite party. Once the said conditions are satisfied, the Consumer Forum would have to decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. There is a duty cast on the Consumer Forum to take into account all relevant factors for arriving at the compensation to be paid.13. In Charan Singh v. Healing Touch Hospital and Others, reported in (2000) 7 SCC 668 , this Court held as follows:"12. ..... Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge."In Ghaziabad Development Authority v. Balbir Singh, reported in 2004(3) R.C.R (Civil) 658 : (2004) 4 SCC 65, this Court was considering the compensation to be awarded to the consumers in cases of deficiency of service by Development Authorities like the Appellant herein and Ghaziabad Development Authority. Considering a situation similar to the one that arises in the instant case, it was held as follows:"9.That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting.*** *** ***11.Further, in cases where the Commission/Forum has directed delivery of possession, the party has to a certain extent already got a benefit. The cost of the land/flat would have gone up in the meantime. Of course, even in cases, where delivery of possession has been directed there could be compensation for the harassment/ loss. But such compensation has to be worked out after looking into the facts of each case and after determining what is the amount of harassment/loss which has been caused to the consumer."14. It is undisputed that the Appellant handed over the plot to the Respondent only in the year 2000 instead of 1989. The Respondent had paid Rs. 1,22,400/- towards the cost of the plot at the rates prevailing in the year of allotment i.e. 1986. There is no dispute that the Respondent was paid Rs. 1,28,188/- towards interest awarded by the State Commission. There is also no dispute about the fact that the Respondent did not commence construction till 2006. The State Commission while awarding the compensation of Rs. 15 lakhs towards escalation in the cost of construction commented on the conduct of the Respondent in delaying the construction only with a view to claim higher compensation.15. The point that falls for our consideration in this case is whether the State Commission was justified in awarding Rs. 15 lakhs towards the escalation in the cost of construction as compensation. We are of the view that the Respondent is not entitled to such compensation awarded by the State Commission and confirmed by the National Commission. The Respondent suffered an injury due to the delay in handing over the possession as there was definitely escalation in the cost of construction. At the same time the Respondent has surely benefited by the increase in the cost of plot between 1989 to 2000. In our opinion, the order of the State Commission is vitiated for non application of mind to a vital and relevant factor and hence, suffers from the vice of unreasonableness. The State Commission criticized the conduct of the Respondent in intentionally delaying the construction for 6 years but still proceeded to award compensation. In the facts and circumstances of this case, we are of the opinion that award of interest would have been sufficient to compensate the Respondent for the loss suffered by him due to the delay in handing over the possession of the plot. The compensation of Rs. 15 lakhs awarded by the State Commission is excessive. As we have not reversed the impugned order on any other ground, it is not necessary for us to delve into other points that were urged by the Respondent. | 1[ds]14. It is undisputed that the Appellant handed over the plot to the Respondent only in the year 2000 instead of 1989. The Respondent had paid Rs. 1,22,400/towards the cost of the plot at the rates prevailing in the year of allotment i.e. 1986. There is no dispute that the Respondent was paid Rs. 1,28,188/towards interest awarded by the State Commission. There is also no dispute about the fact that the Respondent did not commence construction till 2006. The State Commission while awarding the compensation of Rs. 15 lakhs towards escalation in the cost of construction commented on the conduct of the Respondent in delaying the construction only with a view to claim higher compensation.15.The point that falls for our consideration in this case is whether the State Commission was justified in awarding Rs. 15 lakhs towards the escalation in the cost of construction as compensation.We are of the view that the Respondent is not entitled to such compensation awarded by the State Commission and confirmed by the National Commission. The Respondent suffered an injury due to the delay in handing over the possession as there was definitely escalation in the cost of construction. At the same time the Respondent has surely benefited by the increase in the cost of plot between 1989 to 2000. In our opinion, the order of the State Commission is vitiated for non application of mind to a vital and relevant factor and hence, suffers from the vice of unreasonableness. The State Commission criticized the conduct of the Respondent in intentionally delaying the construction for 6 years but still proceeded to award compensation. In the facts and circumstances of this case, we are of the opinion that award of interest would have been sufficient to compensate the Respondent for the loss suffered by him due to the delay in handing over the possession of the plot. The compensation of Rs. 15 lakhs awarded by the State Commission is excessive. As we have not reversed the impugned order on any other ground, it is not necessary for us to delve into other points that were urged by the Respondent. | 1 | 2,558 | 380 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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He also submitted that cogent material was placed before the State Commission to prove the escalation in the cost of construction between 1989 and 2000.10. The avowed object of the Consumer Protection Act, 1986 is to provide for better protection of the interest of consumers. The statement of the objects and reasons, inter alia, provides for a speedy and simple redressal to consumer disputes. The quasi judicial bodies at the District, State and Central levels were empowered to give relief to the consumers and award, wherever appropriate, compensation to consumers.11. Section 14 (1) (d) of the Act which is relevant for the adjudication of the dispute in this case is as follows:"14. Finding of the District Forum.-(1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely:.......(d)to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party."12. The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of the opposite party. Once the said conditions are satisfied, the Consumer Forum would have to decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. There is a duty cast on the Consumer Forum to take into account all relevant factors for arriving at the compensation to be paid.13. In Charan Singh v. Healing Touch Hospital and Others, reported in (2000) 7 SCC 668 , this Court held as follows:"12. ..... Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge."In Ghaziabad Development Authority v. Balbir Singh, reported in 2004(3) R.C.R (Civil) 658 : (2004) 4 SCC 65, this Court was considering the compensation to be awarded to the consumers in cases of deficiency of service by Development Authorities like the Appellant herein and Ghaziabad Development Authority. Considering a situation similar to the one that arises in the instant case, it was held as follows:"9.That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting.*** *** ***11.Further, in cases where the Commission/Forum has directed delivery of possession, the party has to a certain extent already got a benefit. The cost of the land/flat would have gone up in the meantime. Of course, even in cases, where delivery of possession has been directed there could be compensation for the harassment/ loss. But such compensation has to be worked out after looking into the facts of each case and after determining what is the amount of harassment/loss which has been caused to the consumer."14. It is undisputed that the Appellant handed over the plot to the Respondent only in the year 2000 instead of 1989. The Respondent had paid Rs. 1,22,400/- towards the cost of the plot at the rates prevailing in the year of allotment i.e. 1986. There is no dispute that the Respondent was paid Rs. 1,28,188/- towards interest awarded by the State Commission. There is also no dispute about the fact that the Respondent did not commence construction till 2006. The State Commission while awarding the compensation of Rs. 15 lakhs towards escalation in the cost of construction commented on the conduct of the Respondent in delaying the construction only with a view to claim higher compensation.15. The point that falls for our consideration in this case is whether the State Commission was justified in awarding Rs. 15 lakhs towards the escalation in the cost of construction as compensation. We are of the view that the Respondent is not entitled to such compensation awarded by the State Commission and confirmed by the National Commission. The Respondent suffered an injury due to the delay in handing over the possession as there was definitely escalation in the cost of construction. At the same time the Respondent has surely benefited by the increase in the cost of plot between 1989 to 2000. In our opinion, the order of the State Commission is vitiated for non application of mind to a vital and relevant factor and hence, suffers from the vice of unreasonableness. The State Commission criticized the conduct of the Respondent in intentionally delaying the construction for 6 years but still proceeded to award compensation. In the facts and circumstances of this case, we are of the opinion that award of interest would have been sufficient to compensate the Respondent for the loss suffered by him due to the delay in handing over the possession of the plot. The compensation of Rs. 15 lakhs awarded by the State Commission is excessive. As we have not reversed the impugned order on any other ground, it is not necessary for us to delve into other points that were urged by the Respondent.
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14. It is undisputed that the Appellant handed over the plot to the Respondent only in the year 2000 instead of 1989. The Respondent had paid Rs. 1,22,400/towards the cost of the plot at the rates prevailing in the year of allotment i.e. 1986. There is no dispute that the Respondent was paid Rs. 1,28,188/towards interest awarded by the State Commission. There is also no dispute about the fact that the Respondent did not commence construction till 2006. The State Commission while awarding the compensation of Rs. 15 lakhs towards escalation in the cost of construction commented on the conduct of the Respondent in delaying the construction only with a view to claim higher compensation.15.The point that falls for our consideration in this case is whether the State Commission was justified in awarding Rs. 15 lakhs towards the escalation in the cost of construction as compensation.We are of the view that the Respondent is not entitled to such compensation awarded by the State Commission and confirmed by the National Commission. The Respondent suffered an injury due to the delay in handing over the possession as there was definitely escalation in the cost of construction. At the same time the Respondent has surely benefited by the increase in the cost of plot between 1989 to 2000. In our opinion, the order of the State Commission is vitiated for non application of mind to a vital and relevant factor and hence, suffers from the vice of unreasonableness. The State Commission criticized the conduct of the Respondent in intentionally delaying the construction for 6 years but still proceeded to award compensation. In the facts and circumstances of this case, we are of the opinion that award of interest would have been sufficient to compensate the Respondent for the loss suffered by him due to the delay in handing over the possession of the plot. The compensation of Rs. 15 lakhs awarded by the State Commission is excessive. As we have not reversed the impugned order on any other ground, it is not necessary for us to delve into other points that were urged by the Respondent.
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M/s. Shakti Tubes Ltd Vs. State of Bihar & Others | the learned senior counsel submitted that the original contract was for the supply of 7 lakh metres of pipes which was curtailed and changed to the supply of 4 lakh metres of pipes with change in the date of supply with extension of date of supply till 30.04.1993 and supplies were completed within that extended time. In support of his submission he sought to rely upon a judgment of the Bombay High Court in Andheri Bridge View Co-op. Hsg. Society Ltd. v. Krishnakant Anandrao Deo and others reported in 1991 AIR Bombay 129 wherein it was held that a new contract would come in existence in terms of Section 62 of the Contract Act. In the said judgment, the High Court observed as follows in para 13: 13. Now, even if the parties have referred to an agreement as being not a new one but an old one with certain modifications, that would carry no weight if the law on the point is something contrary to what is understood by the parties. For example, we know that when there is a change in the constitution of a firm then the firm is a new partnership notwithstanding the fact that the parties may refer to it as the old partnership with a changed constitution. So also I would say that where there are material or substantial changes which go to the root of the agreement then this has to be regarded in law as a new agreement. What would be the position if the parties agree to sell property A and at a later stage they agree that not property A but property B should be sold? Clearly this would be a new agreement notwithstanding the fact that all other terms regarding rate for payment etc. may also be similar. So also payment of price or the rate of payment is a material part of the agreement for sale. Both the subject-matter and the rate of payment are material parts of any agreement for sale and change in either of these terms brings about a new agreement. In our case therefore the correspondence of 1983 brought about an entirely new agreement -- between new parties, new property (so far a F.S.I. is concerned), and new rates. 28. In order to appreciate the aforesaid contention, we have looked into the documents available on records and considered the same. On analyzing the same we find that in none of the courts below any such issue was raised by the appellant-plaintiff. Neither any issue was framed by the courts below in respect of such a submission nor any ground to that effect was taken earlier. Even in the memorandum of appeal filed in this Court no such ground has been urged or mentioned. Therefore, the issue is being raised, for the first time, at the time of hearing of the case before us which, according to us, can not be permitted to be raised for the first time for the simple reason that the issue that is being urged now is not only a question of law but is a mixed question of law and facts as to whether there is a novation or alteration of contract. The said facts were required to be urged evidentially before the courts below. Unless such a factual foundation is available it is not possible to decide such a mixed question of law and facts. Therefore, such a mixed question of law and facts should not be allowed to be raised at the time of final hearing of appeal before this Court. 29. Even otherwise, we are of the considered view that there was neither any alteration of the contract nor any novation of the contract in the present case. The correspondence between the parties clearly disclosed that after the respondents issued the supply order, the appellant-plaintiff did not supply the pipes in terms of the supply order and it urged mainly for the increase in the price of the goods. Subsequently, they relied upon the price escalation clause and asked for increase in the price of pipes. The perusal of the records also disclosed that subsequently the Government thought it fit that the appellant-plaintiff may not be able to supply the prescribed quantity of goods which was earlier required by the Government and, therefore, they curtailed the quantity of the goods from 7 lakh metres of pipes to 4 lakh metres of pipes. In the process, the Government kept the contents of the supply order intact except a variation in the quantity to be supplied with extension of date of supply. However, the Government gave effect to the price escalation clause which was a part of the earlier supply order and also of the agreements which were entered into between the parties prior to the coming into force of the Act. Therefore, in our considered opinion the said contention, as raised by the learned senior counsel appearing for the appellant-plaintiff, has no legal and factual basis. 30. In any event, it is not possible to decide the aforesaid issue in this case as full factual foundation for such an argument was not placed before us so as to enable us to know as to why the quantity to be supplied by the appellant- plaintiff was curtailed by the Government and as to why the appellant-plaintiff was not supplying the goods despite the receipt of the supply orders for several months. It is also not clear from the records that whether there was any failure or negligence on the part of the appellant-plaintiff in not supplying the goods for a long period of time without any reasonable basis or whether there were laches on the part of the respondents in sorting out the transaction. These are some of the factual issues which are required to be gone into to answer finally such issue which was raised at the time of hearing of the appeal and which cannot be done in the absence of any evidence in that regard. | 0[ds]15. A careful perusal of the aforesaid judgment shows that the decision in the aforesaid case was rendered after clearly recording the fact that the Assam Small Scale Industries Development Corporation Ltd. (for short `the Corporation) placed orders for the supply of medicines manufactured by the respondents therein for the period June, 1991 to June, 1993. In the light of the said facts, it was recorded in paragraph 37 of the judgment that while the Act came into effect from 23rd September, 1992, the supply orders were placed only in respect of Serial Nos. 1 to 26 immediately and before coming into effect of the Act and rest of the supply orders namely, supply orders at Serial Nos. 27 to 71 were placed between 22.10.1992 to 19.06.1993 which were subsequent to the date when the Act came into force. In that context, it was clearly recorded in the judgment that the Act will have no application to the transactions that took place prior to the commencement of the Act. In the next sentence the Court made it clear as to what is referred to and understood by the expression transaction when it clearly stated that out of 71 transactions, Serial Nos. 1 to 26, i.e. supply orders between 05.06.1991 to 28.07.1992 being prior to 23rd September, 1992 when the Act came into force, higher interest as envisaged under Sections 4 and 5 of the Act cannot be paid and demanded in respect of the said supply orders/transactions. It was also made clear that the transactions at Serial Nos. 27 to 71 only i.e. supply orders between 22.10.1992 to 19.06.1993, would attract the provisions of the Act. Therefore, those supply orders which were issued by the Corporation between 22.10.1992 to 19.06.1993 were held to be the transactions which would be entitled to get the benefit of the provisions of the Act16. In our considered opinion, the ratio of the aforesaid decision is clearly applicable and would squarely govern the facts of the present case as well. The said decision was rendered by this Court after appreciating the entire facts as also all the relevant laws on the issue and, therefore, we do not find any reason to take a different view than what was taken by this Court in the aforesaid judgment. Thus, we respectfully agree with the aforesaid decision of this Court which is found to be rightly arrived at after appreciating all the facts and circumstances of the case17. Now coming to the facts of the present case we find that there is no dispute with regard to the fact that the supply order was placed with the respondents on 16.07.1992 for supply of the pipes which date is admittedly prior to the date on which this Act came into effect18. Being faced with the aforesaid situation, the learned senior counsel appearing for thef sought to submit before us that the decision of this Court in Assam Small Scale Industries case (supra) refers to the expression transactions. According to him, the transactions would be complete only when thef made the supply and since the supply was made in the instant case after coming into force of the Act, thef would be entitled to the benefit of Section 4 and 5 of the Act19. Refuting the aforesaid submission, the learned senior counsel appearing for the respondents submitted that the aforesaid contention is completely misplaced. He pointed out that if such a meaning, as sought to be given by the learned senior counsel appearing for the, is accepted that would lead to giving benefit of the provisions of the Act to unscrupulous suppliers who, in order to get the benefit of the Act, would postpone the delivery of the goods on one pretext or the other20. We have considered the aforesaid rival submissions. This Court in Assam Small Scale Industries case (supra) has finally set at rest the issue raised by stating that as to what is to be considered relevant is the date of supply order placed by the respondents and when this Court used the expression transaction it only meant a supply order. The Court made it explicitly clear in paragraph 37 of the judgment which we had already extracted above21. In our considered opinion there is no ambiguity in the aforesaid judgment passed by this Court. The intent and the purpose of the Act, as made in paragraph 37 of the judgment, are quite clear and apparent. When this Court said transaction it meant initiation of the transaction i.e. placing of the supply orders and not the completion of the transactions which would be completed only when the payment is made. Therefore, the submission made by the learned senior counsel appearing for the22. Consequently, we hold that the supply order having been placed herein prior to the coming into force of the Act, any supply made pursuant to the said supply orders would be governed not by the provisions of the Act but by the provisions of Section 34 of the CPC read with the provisions of the Interest on Delayed Payment to Small Scale Industries Act, 199323. At one stage the learned senior counsel appearing for thef submitted that the Act in question is a beneficial legislation and, therefore, a liberal interpretation and wider meaning is to be given to such a beneficial and welfare legislation so as to protect the interest of the supplier who is being kept on a higher pedestal by giving a higher benefit in the Act24. Generally, an Act should always be regarded as prospective in nature unless the legislature has clearly intended the provisions of the said Act to be made applicable with retrospective effect. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. The aforesaid rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations16. Where a statute is passed for the purpose of supplying an obvious omission in a former statute or to explain a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature. A classic illustration is the case of Attorney General v. Pougett (Price at p. 392). By a Customs Act of 1873 (53 Geo. 3, c. 33) a duty was imposed upon hides of 9s 4d, but the Act omitted to state that it was to be 9s 4d per cwt., and to remedy this omission another Customs Act (53 Geo. 3, c. 105) was passed later in the same year25 There is no dispute with regard to the fact that the Act in question is a welfare legislation which was enacted to protect the interest of the suppliers especially suppliers of the nature of a small scale industry. But, at the same time, the intention and the purpose of the Act cannot be lost sight of and the Act in question cannot be given a retrospective effect so long as such an intention is not clearly made out and derived from the Act itself27. Relying on the aforesaid provision of the Contract Act, the learned senior counsel submitted that the original contract was for the supply of 7 lakh metres of pipes which was curtailed and changed to the supply of 4 lakh metres of pipes with change in the date of supply with extension of date of supply till 30.04.1993 and supplies were completed within that extended time. In support of his submission he sought to rely upon a judgment of the Bombay High Court in Andheri Bridge View. Hsg. Society Ltd. v. Krishnakant Anandrao Deo and others reported in 1991 AIR Bombay 129 wherein it was held that a new contract would come in existence in terms of Section 62 of the Contract Act28. In order to appreciate the aforesaid contention, we have looked into the documents available on records and considered the same. On analyzing the same we find that in none of the courts below any such issue was raised by the. Neither any issue was framed by the courts below in respect of such a submission nor any ground to that effect was taken earlier. Even in the memorandum of appeal filed in this Court no such ground has been urged or mentioned. Therefore, the issue is being raised, for the first time, at the time of hearing of the case before us which, according to us, can not be permitted to be raised for the first time for the simple reason that the issue that is being urged now is not only a question of law but is a mixed question of law and facts as to whether there is a novation or alteration of contract. The said facts were required to be urged evidentially before the courts below. Unless such a factual foundation is available it is not possible to decide such a mixed question of law and facts. Therefore, such a mixed question of law and facts should not be allowed to be raised at the time of final hearing of appeal before this Court29. Even otherwise, we are of the considered view that there was neither any alteration of the contract nor any novation of the contract in the present case. The correspondence between the parties clearly disclosed that after the respondents issued the supply order, thef did not supply the pipes in terms of the supply order and it urged mainly for the increase in the price of the goods. Subsequently, they relied upon the price escalation clause and asked for increase in the price of pipes. The perusal of the records also disclosed that subsequently the Government thought it fit that thef may not be able to supply the prescribed quantity of goods which was earlier required by the Government and, therefore, they curtailed the quantity of the goods from 7 lakh metres of pipes to 4 lakh metres of pipes. In the process, the Government kept the contents of the supply order intact except a variation in the quantity to be supplied with extension of date of supply. However, the Government gave effect to the price escalation clause which was a part of the earlier supply order and also of the agreements which were entered into between the parties prior to the coming into force of the Act. Therefore, in our considered opinion the said contention, as raised by the learned senior counsel appearing for the, has no legal and factual basis30. In any event, it is not possible to decide the aforesaid issue in this case as full factual foundation for such an argument was not placed before us so as to enable us to know as to why the quantity to be supplied by the appellantplaintiff was curtailed by the Government and as to why thef was not supplying the goods despite the receipt of the supply orders for several months. It is also not clear from the records that whether there was any failure or negligence on the part of thef in not supplying the goods for a long period of time without any reasonable basis or whether there were laches on the part of the respondents in sorting out the transaction. These are some of the factual issues which are required to be gone into to answer finally such issue which was raised at the time of hearing of the appeal and which cannot be done in the absence of any evidence in that regard. | 0 | 5,816 | 2,089 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the learned senior counsel submitted that the original contract was for the supply of 7 lakh metres of pipes which was curtailed and changed to the supply of 4 lakh metres of pipes with change in the date of supply with extension of date of supply till 30.04.1993 and supplies were completed within that extended time. In support of his submission he sought to rely upon a judgment of the Bombay High Court in Andheri Bridge View Co-op. Hsg. Society Ltd. v. Krishnakant Anandrao Deo and others reported in 1991 AIR Bombay 129 wherein it was held that a new contract would come in existence in terms of Section 62 of the Contract Act. In the said judgment, the High Court observed as follows in para 13: 13. Now, even if the parties have referred to an agreement as being not a new one but an old one with certain modifications, that would carry no weight if the law on the point is something contrary to what is understood by the parties. For example, we know that when there is a change in the constitution of a firm then the firm is a new partnership notwithstanding the fact that the parties may refer to it as the old partnership with a changed constitution. So also I would say that where there are material or substantial changes which go to the root of the agreement then this has to be regarded in law as a new agreement. What would be the position if the parties agree to sell property A and at a later stage they agree that not property A but property B should be sold? Clearly this would be a new agreement notwithstanding the fact that all other terms regarding rate for payment etc. may also be similar. So also payment of price or the rate of payment is a material part of the agreement for sale. Both the subject-matter and the rate of payment are material parts of any agreement for sale and change in either of these terms brings about a new agreement. In our case therefore the correspondence of 1983 brought about an entirely new agreement -- between new parties, new property (so far a F.S.I. is concerned), and new rates. 28. In order to appreciate the aforesaid contention, we have looked into the documents available on records and considered the same. On analyzing the same we find that in none of the courts below any such issue was raised by the appellant-plaintiff. Neither any issue was framed by the courts below in respect of such a submission nor any ground to that effect was taken earlier. Even in the memorandum of appeal filed in this Court no such ground has been urged or mentioned. Therefore, the issue is being raised, for the first time, at the time of hearing of the case before us which, according to us, can not be permitted to be raised for the first time for the simple reason that the issue that is being urged now is not only a question of law but is a mixed question of law and facts as to whether there is a novation or alteration of contract. The said facts were required to be urged evidentially before the courts below. Unless such a factual foundation is available it is not possible to decide such a mixed question of law and facts. Therefore, such a mixed question of law and facts should not be allowed to be raised at the time of final hearing of appeal before this Court. 29. Even otherwise, we are of the considered view that there was neither any alteration of the contract nor any novation of the contract in the present case. The correspondence between the parties clearly disclosed that after the respondents issued the supply order, the appellant-plaintiff did not supply the pipes in terms of the supply order and it urged mainly for the increase in the price of the goods. Subsequently, they relied upon the price escalation clause and asked for increase in the price of pipes. The perusal of the records also disclosed that subsequently the Government thought it fit that the appellant-plaintiff may not be able to supply the prescribed quantity of goods which was earlier required by the Government and, therefore, they curtailed the quantity of the goods from 7 lakh metres of pipes to 4 lakh metres of pipes. In the process, the Government kept the contents of the supply order intact except a variation in the quantity to be supplied with extension of date of supply. However, the Government gave effect to the price escalation clause which was a part of the earlier supply order and also of the agreements which were entered into between the parties prior to the coming into force of the Act. Therefore, in our considered opinion the said contention, as raised by the learned senior counsel appearing for the appellant-plaintiff, has no legal and factual basis. 30. In any event, it is not possible to decide the aforesaid issue in this case as full factual foundation for such an argument was not placed before us so as to enable us to know as to why the quantity to be supplied by the appellant- plaintiff was curtailed by the Government and as to why the appellant-plaintiff was not supplying the goods despite the receipt of the supply orders for several months. It is also not clear from the records that whether there was any failure or negligence on the part of the appellant-plaintiff in not supplying the goods for a long period of time without any reasonable basis or whether there were laches on the part of the respondents in sorting out the transaction. These are some of the factual issues which are required to be gone into to answer finally such issue which was raised at the time of hearing of the appeal and which cannot be done in the absence of any evidence in that regard.
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is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. The aforesaid rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations16. Where a statute is passed for the purpose of supplying an obvious omission in a former statute or to explain a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature. A classic illustration is the case of Attorney General v. Pougett (Price at p. 392). By a Customs Act of 1873 (53 Geo. 3, c. 33) a duty was imposed upon hides of 9s 4d, but the Act omitted to state that it was to be 9s 4d per cwt., and to remedy this omission another Customs Act (53 Geo. 3, c. 105) was passed later in the same year25 There is no dispute with regard to the fact that the Act in question is a welfare legislation which was enacted to protect the interest of the suppliers especially suppliers of the nature of a small scale industry. But, at the same time, the intention and the purpose of the Act cannot be lost sight of and the Act in question cannot be given a retrospective effect so long as such an intention is not clearly made out and derived from the Act itself27. Relying on the aforesaid provision of the Contract Act, the learned senior counsel submitted that the original contract was for the supply of 7 lakh metres of pipes which was curtailed and changed to the supply of 4 lakh metres of pipes with change in the date of supply with extension of date of supply till 30.04.1993 and supplies were completed within that extended time. In support of his submission he sought to rely upon a judgment of the Bombay High Court in Andheri Bridge View. Hsg. Society Ltd. v. Krishnakant Anandrao Deo and others reported in 1991 AIR Bombay 129 wherein it was held that a new contract would come in existence in terms of Section 62 of the Contract Act28. In order to appreciate the aforesaid contention, we have looked into the documents available on records and considered the same. On analyzing the same we find that in none of the courts below any such issue was raised by the. Neither any issue was framed by the courts below in respect of such a submission nor any ground to that effect was taken earlier. Even in the memorandum of appeal filed in this Court no such ground has been urged or mentioned. Therefore, the issue is being raised, for the first time, at the time of hearing of the case before us which, according to us, can not be permitted to be raised for the first time for the simple reason that the issue that is being urged now is not only a question of law but is a mixed question of law and facts as to whether there is a novation or alteration of contract. The said facts were required to be urged evidentially before the courts below. Unless such a factual foundation is available it is not possible to decide such a mixed question of law and facts. Therefore, such a mixed question of law and facts should not be allowed to be raised at the time of final hearing of appeal before this Court29. Even otherwise, we are of the considered view that there was neither any alteration of the contract nor any novation of the contract in the present case. The correspondence between the parties clearly disclosed that after the respondents issued the supply order, thef did not supply the pipes in terms of the supply order and it urged mainly for the increase in the price of the goods. Subsequently, they relied upon the price escalation clause and asked for increase in the price of pipes. The perusal of the records also disclosed that subsequently the Government thought it fit that thef may not be able to supply the prescribed quantity of goods which was earlier required by the Government and, therefore, they curtailed the quantity of the goods from 7 lakh metres of pipes to 4 lakh metres of pipes. In the process, the Government kept the contents of the supply order intact except a variation in the quantity to be supplied with extension of date of supply. However, the Government gave effect to the price escalation clause which was a part of the earlier supply order and also of the agreements which were entered into between the parties prior to the coming into force of the Act. Therefore, in our considered opinion the said contention, as raised by the learned senior counsel appearing for the, has no legal and factual basis30. In any event, it is not possible to decide the aforesaid issue in this case as full factual foundation for such an argument was not placed before us so as to enable us to know as to why the quantity to be supplied by the appellantplaintiff was curtailed by the Government and as to why thef was not supplying the goods despite the receipt of the supply orders for several months. It is also not clear from the records that whether there was any failure or negligence on the part of thef in not supplying the goods for a long period of time without any reasonable basis or whether there were laches on the part of the respondents in sorting out the transaction. These are some of the factual issues which are required to be gone into to answer finally such issue which was raised at the time of hearing of the appeal and which cannot be done in the absence of any evidence in that regard.
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Patel Narsee Ladhu Vs. Bhatt Chimanlal Ratanji and Others | KRISHNA IYER, J.1. These appeals can be disposed of by a common order which we propose to pass in Civil Appeal 707 of 1976, a principal appeal in which the matter has been fully discussed by the High Court.2. We need not set out the facts elaborately nor need we discuss the issues at length since we are disposed to agree with the High Court on all the findings it has recorded and our final order deals really with the absence of a finding of the High Court on a certain aspect of the case.3. The Haveli Mandir, Limbdi, was the owner of lands which are the subject-matter of the present proceedings. The said lands were owned in Barkhali right by the Mandir; that these were owned by the Mandir and not by the private individuals who laid claims to them, was established by the adjudication of the Charity Commissioner in this behalf. However, possession of the lands had been transferred under sale deeds executed by one of the three brothers who claimed private ownership of the lands in question, namely, Bhalachandra. The Charity Commissioner directed the trustees appointed under the Bombay Public Trust Act, 1950, to bring a suit and recover possession of the trust property in the hands of the alienees who happened to be the defendants/appellants. The defendants/appellants raised various question including adverse possession by their predecessor, Bhalachandra. They also raised a question that under the Saurashtra Barkhali Abolition Act, 1951, occupancy certificate had been issued to their predecessor, Bhalachandra and that in any event by virtue of that certificate they were entitled to continue in possession as holders of occupancy right. The trial Court upheld the plea of adverse possession and dismissed the suit. Of course, it negatived the plea based on the Saurashtra Barkhali Abolition Act. By the time the trustees took up the matter in appeal, the major issue was adverse possession, with the result that the plea under the occupancy certificate put forward as an alternative defence did not figure prominently or at all at the appellate stage. The appellate Court upheld the plea of adverse possession and non-suited the plaintiffs. In the High Court in second appeal the whole question was reassessed and the plea of adverse possession was negatived. We are fully satisfied that the finding of the High Court on this question is correct. We are also satisfied that the finding of title in favour of the Haveli Mandir by the Charity Commissioner cannot be challenged by the defendants/appellants since it binds their predecessor, Bhalachandra.4. Even so, the High Court did not go into the question as to whether any rights enured to the defendants under the occupancy certificate obtained by Bhalachandra which presumably was alienated in favour of the defendants/appellants. Probably this question was not debated prominently before the High Court and went by default. Having heard counsel on both sides, we think that this point merits consideration. While was express on opinion whatever on the soundness or otherwise of the plea based upon occupancy certificate issued under Section 7(3) of the Act, it becomes necessary to decide what impact this certificate will have on the relief of possession claimed by the plaintiffs/respondents. We think that the justice of the case demands that the High Court should go into this question and record a finding thereon and thereupon dispose of the appeal. We, therefore, set aside the decree for possession passed by the High Court but while confirming all the findings recorded by it, direct it to go into the limited plea based on the occupancy certificate issued under Section 7(3) of the Barkhali Abolition Act, 1951 and its effect upon the relief of possession claimed by the plaintiffs. The main aspect of the question turning on the provisions of the Act may have to be investigated and pronounced upon. After deciding this issue the High Court will dispose of the appeal. The parties will bear their costs in this Court. | 1[ds]4. Even so, the High Court did not go into the question as to whether any rights enured to the defendants under the occupancy certificate obtained by Bhalachandra which presumably was alienated in favour of the defendants/appellants. Probably this question was not debated prominently before the High Court and went by default. Having heard counsel on both sides, we think that this point merits consideration. While was express on opinion whatever on the soundness or otherwise of the plea based upon occupancy certificate issued under Section 7(3) of the Act, it becomes necessary to decide what impact this certificate will have on the relief of possession claimed by the plaintiffs/respondents. We think that the justice of the case demands that the High Court should go into this question and record a finding thereon and thereupon dispose of the appeal. We, therefore, set aside the decree for possession passed by the High Court but while confirming all the findings recorded by it, direct it to go into the limited plea based on the occupancy certificate issued under Section 7(3) of the Barkhali Abolition Act, 1951 and its effect upon the relief of possession claimed by the plaintiffs. The main aspect of the question turning on the provisions of the Act may have to be investigated and pronounced upon. After deciding this issue the High Court will dispose of the appeal. The parties will bear their costs in this Court. | 1 | 720 | 265 | ### 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:
KRISHNA IYER, J.1. These appeals can be disposed of by a common order which we propose to pass in Civil Appeal 707 of 1976, a principal appeal in which the matter has been fully discussed by the High Court.2. We need not set out the facts elaborately nor need we discuss the issues at length since we are disposed to agree with the High Court on all the findings it has recorded and our final order deals really with the absence of a finding of the High Court on a certain aspect of the case.3. The Haveli Mandir, Limbdi, was the owner of lands which are the subject-matter of the present proceedings. The said lands were owned in Barkhali right by the Mandir; that these were owned by the Mandir and not by the private individuals who laid claims to them, was established by the adjudication of the Charity Commissioner in this behalf. However, possession of the lands had been transferred under sale deeds executed by one of the three brothers who claimed private ownership of the lands in question, namely, Bhalachandra. The Charity Commissioner directed the trustees appointed under the Bombay Public Trust Act, 1950, to bring a suit and recover possession of the trust property in the hands of the alienees who happened to be the defendants/appellants. The defendants/appellants raised various question including adverse possession by their predecessor, Bhalachandra. They also raised a question that under the Saurashtra Barkhali Abolition Act, 1951, occupancy certificate had been issued to their predecessor, Bhalachandra and that in any event by virtue of that certificate they were entitled to continue in possession as holders of occupancy right. The trial Court upheld the plea of adverse possession and dismissed the suit. Of course, it negatived the plea based on the Saurashtra Barkhali Abolition Act. By the time the trustees took up the matter in appeal, the major issue was adverse possession, with the result that the plea under the occupancy certificate put forward as an alternative defence did not figure prominently or at all at the appellate stage. The appellate Court upheld the plea of adverse possession and non-suited the plaintiffs. In the High Court in second appeal the whole question was reassessed and the plea of adverse possession was negatived. We are fully satisfied that the finding of the High Court on this question is correct. We are also satisfied that the finding of title in favour of the Haveli Mandir by the Charity Commissioner cannot be challenged by the defendants/appellants since it binds their predecessor, Bhalachandra.4. Even so, the High Court did not go into the question as to whether any rights enured to the defendants under the occupancy certificate obtained by Bhalachandra which presumably was alienated in favour of the defendants/appellants. Probably this question was not debated prominently before the High Court and went by default. Having heard counsel on both sides, we think that this point merits consideration. While was express on opinion whatever on the soundness or otherwise of the plea based upon occupancy certificate issued under Section 7(3) of the Act, it becomes necessary to decide what impact this certificate will have on the relief of possession claimed by the plaintiffs/respondents. We think that the justice of the case demands that the High Court should go into this question and record a finding thereon and thereupon dispose of the appeal. We, therefore, set aside the decree for possession passed by the High Court but while confirming all the findings recorded by it, direct it to go into the limited plea based on the occupancy certificate issued under Section 7(3) of the Barkhali Abolition Act, 1951 and its effect upon the relief of possession claimed by the plaintiffs. The main aspect of the question turning on the provisions of the Act may have to be investigated and pronounced upon. After deciding this issue the High Court will dispose of the appeal. The parties will bear their costs in this Court.
### Response:
1
### Explanation:
4. Even so, the High Court did not go into the question as to whether any rights enured to the defendants under the occupancy certificate obtained by Bhalachandra which presumably was alienated in favour of the defendants/appellants. Probably this question was not debated prominently before the High Court and went by default. Having heard counsel on both sides, we think that this point merits consideration. While was express on opinion whatever on the soundness or otherwise of the plea based upon occupancy certificate issued under Section 7(3) of the Act, it becomes necessary to decide what impact this certificate will have on the relief of possession claimed by the plaintiffs/respondents. We think that the justice of the case demands that the High Court should go into this question and record a finding thereon and thereupon dispose of the appeal. We, therefore, set aside the decree for possession passed by the High Court but while confirming all the findings recorded by it, direct it to go into the limited plea based on the occupancy certificate issued under Section 7(3) of the Barkhali Abolition Act, 1951 and its effect upon the relief of possession claimed by the plaintiffs. The main aspect of the question turning on the provisions of the Act may have to be investigated and pronounced upon. After deciding this issue the High Court will dispose of the appeal. The parties will bear their costs in this Court.
|
M/S. National Seeds Corpn. Ltd Vs. M.Madhusudhan Reddy | Forum to send the samples of seeds from the said batch for analysis by appropriate laboratory. But the opposite parties have not chosen to file any application for sending the seeds to any laboratory. Since it is probable that the complainants have sown all the seeds purchased by them, they were not in a position to send seeds for analysis. In these circumstances, the order of the District Forum is not vitiated by the circumstance that it has not on its own accord sent the seeds for analysis by an appropriate laboratory. * * * It is clear from the letter of the Agricultural Officer that the opposite parties in spite of their promise, never visited the fields of the complainants. The opposite parties did not adduce any material to show that the complainants did not manure properly or that there is some defect in the field. In the absence of such evidence and in view of the conduct of the opposite parties not visiting the fields and having regard to the allegation in the complaint that there were rains in the month of September 1991 and the complainants sowed the seeds, it cannot be said that there is any defect either in the manure or in the preparation of the soil for sowing sunflower seeds. (emphasis supplied) 38. Reference can usefully be made to the orders of the National Commission in N.S.C. Ltd. v. Guruswamy (2002) CPJ 13 , E.I.D. Parry (I) Ltd. v. Gourishankar (2006) CPJ 178 and India Seed House v. Ramjilal Sharma (2008) 3 CPJ 96. In these cases the National Commission considered the issue relating to non-compliance of Section 13(1)(c) in the context of the complaints made by the farmers that their crops had failed due to supply of defective seeds and held that the District Forum and State Commission did not commit any error by entertaining the complaint of the farmers and awarding compensation to them. In the first case, the National Commission noted that the entire quantity of seeds had been sown by the farmer and observed: There is no doubt in our mind that where complainant alleges a defect in goods which cannot be determined without proper analysis or test of the goods, then, the sample need to be taken and sent to a laboratory for analysis or test. But, the ground reality in the instant case is that reposing faith in the seller, in this case the leading Public Sector Company dealing in seed production and sale, the petitioner sowed whole of the seed purchased by him. Where was the question of any sample seed to be sent to any laboratory in the case? Whatever the Respondent/Complainant had, was sown. One could have appreciated the bonafides better, if sample from the crop was taken during the visit of Assistant Seed Officer of Petitioner - N.S.C. and sent for analysis. Their failure is unexceptionable. In our view, it is the Petitioner Company which failed to comply with the provisions of Section 13 (c) of the Act. By the time, complainant could be filed even this opportunity had passed. If the Petitioner Company was little more sensitive or alert to the complaint of the Respondent/Complainant, this situation might not have arisen. Petitioner has to pay for his insensitivity. The Respondent/Complainant led evidence of States agricultural authorities in support who made their statements after seeing the crop in the field. The onus passes on to the Petitioner to prove that the crop which grew in the field of the complainant was of Arkajyothi of which the seed was sold and not of Sugar Baby, as alleged. He cannot take shelter under Section 13 (c) of the CP Act. Learned Counsels plea that Respondent/Complainant should have kept portion of seeds purchased by him to be used for sampling purposes, is not only unsustainable in law but to say the least, is very unbecoming of a leading Public Sector Seed Company to expect this arrangement. In the second case, the National Commission took cognizance of the objection raised by the appellant that the procedure prescribed under Section 13(1)(c) of the Consumer Act had not been followed and observed: Testimony of the complainant would show that whatever seed was purchased from respondent No. 2 was sown by him in the land. Thus, there was no occasion for complainant to have sent the sample of seed for testing to the laboratory. It is in the deposition of Jagadish Gauda that after testing the seed the petitioner company packed and sent it to the market. However, the testing report of the disputed seed has not been filed. Since petitioner company is engaged in business of sunflower seed on large scale, it must be having the seed of the lot which was sold to complainant. In order to prove that the seed sold to complainant was not sub- standard/defective, the petitioner company could have sent the sample for testing to the laboratory which it failed to do. Thus, no adverse inference can be drawn against complainant on ground of his having not sent the sample of seed for testing to a laboratory. In the third case, the National Commission held: Holding in favour of the complainant, the National Commission stated that, it is not expected from every buyer of the seeds to set apart some quantity of seeds for testing on the presumption that seeds would be defective and he would be called upon to prove the same through laboratory testing. On the other hand a senior officer of the Government had visited the field and inspected the crop and given report under his hand and seal, clearly certifying that the seeds were defective. 39. The reasons assigned by the National Commission in the aforementioned three cases are similar to the reasons assigned by the State Commission which were approved by this Court in Maharashtra Hybrid Seeds Company Ltd. v. Alavalapati Chandra Reddy (supra) and in our view the proposition laid down in those cases represent the correct legal position. | 0[ds]16. An analysis of the above reproduced provisions shows that for achieving the object of regulating the quality of certain seeds to be sold for the purposes of agriculture including horticulture, the legislature has made provisions for specifying the minimum limits of germination and purity of notified kind or variety of seeds and the affixation of mark or label to indicate that such seed conforms to those limits, for restricting sale, etc., of any notified kind or variety of seed unless the same is identifiable as to its kind or variety and conforms to the minimum limits of germination and purity; grant of certificate by the certification agency to certain category of person; revocation of the certificate; appointment of Seed Analysts and Seed Inspectors with power to the latter to take sample of any seed of any notified kind or variety from any person selling such seed or a producer of seeds and send the same for analysis by the State Seed Laboratory or the Central Seed Laboratory. The Seed Inspector can launch prosecution for violation of any provision of the Seeds Act or any Rule made thereunder. If a person is found guilty then he can be punished with imprisonment upto a maximum period of six months or he can be visited with a penalty of fine upto Rs.1,000/- or with both. If an offence is committed by a company, then every person who, at the time of commission of offence was incharge of and was responsible to the company of the conduct of its business can be punished. Rule 13 of the Rules casts a duty on very person selling, keeping for sale, offering to sell, bartering or otherwise supplying any seed of notified kind or variety to keep complete record of each lot of seeds sold for a period of three years. He is also required to keep sample of the seed, which can be tested for determining the puritythe Seeds Act is a special legislation enacted for ensuring that there is no compromise with the quality of seeds sold to the farmers and others and provisions have been made for imposition of substantive punishment on a person found guilty of violating the provisions relating the quality of the seeds, the legislature has not put in place any adjudicatory mechanism for compensating the farmers/growers of seeds and other similarly situated persons who may suffer loss of crop or who may get insufficient yield due to use of defective seeds sold/supplied by the appellant or any other authorised person. No one can dispute that the agriculturists and horticulturists are the largest consumers of seeds. They suffer loss of crop due to various reasons, one of which is the use of defective/sub- standard seeds. The Seeds Act is totally silent on the issue of payment of compensation for the loss of crop on account of use of defective seeds supplied by the appellant and others who may obtain certificate under Section 9 of the Seeds Act. A farmer who may suffer loss of crop due to defective seeds can approach the Seed Inspector and make a request for prosecution of the person from whom he purchased the seeds. If found guilty, such person can be imprisoned, but this cannot redeem the loss suffered by the farmer23. It can thus be said that in the context of farmers/growers and other consumer of seeds, the Seeds Act is a special legislation insofar as the provisions contained therein ensure that those engaged in agriculture and horticulture get quality seeds and any person who violates the provisions of the Act and/or the Rules is brought before the law and punished. However, there is no provision in that Act and the Rules framed thereunder for compensating the farmers etc. who may suffer adversely due to loss of crop or deficient yield on account of defective seeds supplied by a person authorised to sell the seeds. That apart, there is nothing in the Seeds Act and the Rules which may give an indication that the provisions of the Consumer Act are not available to the farmers who are otherwise covered by the wide definition of `consumer under Section 2(d) of the Consumer Act. As a matter of fact, any attempt to exclude the farmers from the ambit of the Consumer Act by implication will make that Act vulnerable to an attack of unconstitutionality on the ground of discrimination and there is no reason why the provisions of the Consumer Act should be so interpreted26. Since the farmers/growers purchased seeds by paying a price to the appellant, they would certainly fall within the ambit of Section 2(d)(i) of the Consumer Act and there is no reason to deny them the remedies which are available to other consumers of goods and services33. What needs to be emphasized is that the appellant had selected a set of farmers in the area for growing seeds on its behalf. After entering into agreements with the selected farmers, the appellant supplied foundation seeds to them for a price, with an assurance that within few months they will be able to earn profit. The seeds sown under the supervision of the expert deputed by the appellant. The entire crop was to be purchased by the appellant. The agreements entered into between the appellant and the growers clearly postulated supply of the foundation seeds by the appellant with an assurance that the crop will be purchased by it. It is neither the pleaded case of the appellant nor any evidence was produced before any of the Consumer Forums that the growers had the freedom to sell the seeds in the open market or to any person other than the appellant. Therefore, it is not possible to take the view that the growers had purchased the seeds for resale or for any commercial purpose and they are excluded from the definition of the term `consumer. As a matter of fact, the evidence brought on record shows that the growers had agreed to produce seeds on behalf of the appellant for the purpose of earning their livelihood by using their skills and labourA reading of the plain language of that section shows that the District Forum can call upon the complainant to provide a sample of goods if it is satisfied that the defect in the goods cannot be determined without proper analysis or test. After the sample is obtained, the same is required to be sent to an appropriate laboratory for analysis or test for the purpose of finding out whether the goods suffer from any defect as alleged in the complaint or from any other defect. In some of these cases, the District Forums had appointed agricultural experts as Court Commissioners and directed them to inspect the fields of the respondents and submit report about the status of the crops. In one or two cases the Court appointed Advocate Commissioner with liberty to him to avail the services of agricultural experts for ascertaining the true status of the crops. The reports of the agricultural experts produced before the District Forum unmistakably revealed that the crops had failed because of defective seeds/foundation seeds. After examining the reports the District Forums felt satisfied that the seeds were defective and this is the reason why the complainants were not called upon to provide samples of the seeds for getting the same analysed/tested in an appropriate laboratory. In our view, the procedure adopted by the District Forum was in no way contrary to Section 13(1)(c) of the Consumer Act and the appellant cannot seek annulment of well-reasoned orders passed by three Consumer Forums on the specious ground that the procedure prescribed under Section 13(1)(c) of the Consumer Act had not been followed36. It may also be mentioned that there was abject failure on the appellants part to assist the District Forum by providing samples of the varieties of seeds sold to the respondents. Rule 13(3) casts a duty on every person selling, keeping for sale, offering to sell, bartering or otherwise supplying any seed of notified kind or variety to keep over a period of three years a complete record of each lot of seeds sold except that any seed sample may be discarded one year after the entire lot represented by such sample has been disposed of. The sample of seed kept as part of the complete record has got to be of similar size and if required to be tested, the same shall be tested for determining the purity. The appellant is a large supplier of seeds to the farmers/growers and growers. Therefore, it was expected to keep the samples of the varieties of seeds sold/supplied to the respondents. Such samples could have been easily made available to the District Forums for being sent to an appropriate laboratory for the purpose of analysis or test. Why the appellant did not adopt that course has not been explained. Not only this, the officers of the appellant, who inspected the fields of the respondents could have collected the samples and got them tested in a designated laboratory for ascertaining the purity of the seeds and/or the extent of germination, etc. Why this was not done has also not been explained by the appellant. These omissions lend support to the plea of the respondents that the seeds sold/supplied by the appellant were defective39. The reasons assigned by the National Commission in the aforementioned three cases are similar to the reasons assigned by the State Commission which were approved by this Court in Maharashtra Hybrid Seeds Company Ltd. v. Alavalapati Chandra Reddy (supra) and in our view the proposition laid down in those cases represent the correct legal position | 0 | 16,181 | 1,724 | ### 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:
Forum to send the samples of seeds from the said batch for analysis by appropriate laboratory. But the opposite parties have not chosen to file any application for sending the seeds to any laboratory. Since it is probable that the complainants have sown all the seeds purchased by them, they were not in a position to send seeds for analysis. In these circumstances, the order of the District Forum is not vitiated by the circumstance that it has not on its own accord sent the seeds for analysis by an appropriate laboratory. * * * It is clear from the letter of the Agricultural Officer that the opposite parties in spite of their promise, never visited the fields of the complainants. The opposite parties did not adduce any material to show that the complainants did not manure properly or that there is some defect in the field. In the absence of such evidence and in view of the conduct of the opposite parties not visiting the fields and having regard to the allegation in the complaint that there were rains in the month of September 1991 and the complainants sowed the seeds, it cannot be said that there is any defect either in the manure or in the preparation of the soil for sowing sunflower seeds. (emphasis supplied) 38. Reference can usefully be made to the orders of the National Commission in N.S.C. Ltd. v. Guruswamy (2002) CPJ 13 , E.I.D. Parry (I) Ltd. v. Gourishankar (2006) CPJ 178 and India Seed House v. Ramjilal Sharma (2008) 3 CPJ 96. In these cases the National Commission considered the issue relating to non-compliance of Section 13(1)(c) in the context of the complaints made by the farmers that their crops had failed due to supply of defective seeds and held that the District Forum and State Commission did not commit any error by entertaining the complaint of the farmers and awarding compensation to them. In the first case, the National Commission noted that the entire quantity of seeds had been sown by the farmer and observed: There is no doubt in our mind that where complainant alleges a defect in goods which cannot be determined without proper analysis or test of the goods, then, the sample need to be taken and sent to a laboratory for analysis or test. But, the ground reality in the instant case is that reposing faith in the seller, in this case the leading Public Sector Company dealing in seed production and sale, the petitioner sowed whole of the seed purchased by him. Where was the question of any sample seed to be sent to any laboratory in the case? Whatever the Respondent/Complainant had, was sown. One could have appreciated the bonafides better, if sample from the crop was taken during the visit of Assistant Seed Officer of Petitioner - N.S.C. and sent for analysis. Their failure is unexceptionable. In our view, it is the Petitioner Company which failed to comply with the provisions of Section 13 (c) of the Act. By the time, complainant could be filed even this opportunity had passed. If the Petitioner Company was little more sensitive or alert to the complaint of the Respondent/Complainant, this situation might not have arisen. Petitioner has to pay for his insensitivity. The Respondent/Complainant led evidence of States agricultural authorities in support who made their statements after seeing the crop in the field. The onus passes on to the Petitioner to prove that the crop which grew in the field of the complainant was of Arkajyothi of which the seed was sold and not of Sugar Baby, as alleged. He cannot take shelter under Section 13 (c) of the CP Act. Learned Counsels plea that Respondent/Complainant should have kept portion of seeds purchased by him to be used for sampling purposes, is not only unsustainable in law but to say the least, is very unbecoming of a leading Public Sector Seed Company to expect this arrangement. In the second case, the National Commission took cognizance of the objection raised by the appellant that the procedure prescribed under Section 13(1)(c) of the Consumer Act had not been followed and observed: Testimony of the complainant would show that whatever seed was purchased from respondent No. 2 was sown by him in the land. Thus, there was no occasion for complainant to have sent the sample of seed for testing to the laboratory. It is in the deposition of Jagadish Gauda that after testing the seed the petitioner company packed and sent it to the market. However, the testing report of the disputed seed has not been filed. Since petitioner company is engaged in business of sunflower seed on large scale, it must be having the seed of the lot which was sold to complainant. In order to prove that the seed sold to complainant was not sub- standard/defective, the petitioner company could have sent the sample for testing to the laboratory which it failed to do. Thus, no adverse inference can be drawn against complainant on ground of his having not sent the sample of seed for testing to a laboratory. In the third case, the National Commission held: Holding in favour of the complainant, the National Commission stated that, it is not expected from every buyer of the seeds to set apart some quantity of seeds for testing on the presumption that seeds would be defective and he would be called upon to prove the same through laboratory testing. On the other hand a senior officer of the Government had visited the field and inspected the crop and given report under his hand and seal, clearly certifying that the seeds were defective. 39. The reasons assigned by the National Commission in the aforementioned three cases are similar to the reasons assigned by the State Commission which were approved by this Court in Maharashtra Hybrid Seeds Company Ltd. v. Alavalapati Chandra Reddy (supra) and in our view the proposition laid down in those cases represent the correct legal position.
### Response:
0
### Explanation:
no provision in that Act and the Rules framed thereunder for compensating the farmers etc. who may suffer adversely due to loss of crop or deficient yield on account of defective seeds supplied by a person authorised to sell the seeds. That apart, there is nothing in the Seeds Act and the Rules which may give an indication that the provisions of the Consumer Act are not available to the farmers who are otherwise covered by the wide definition of `consumer under Section 2(d) of the Consumer Act. As a matter of fact, any attempt to exclude the farmers from the ambit of the Consumer Act by implication will make that Act vulnerable to an attack of unconstitutionality on the ground of discrimination and there is no reason why the provisions of the Consumer Act should be so interpreted26. Since the farmers/growers purchased seeds by paying a price to the appellant, they would certainly fall within the ambit of Section 2(d)(i) of the Consumer Act and there is no reason to deny them the remedies which are available to other consumers of goods and services33. What needs to be emphasized is that the appellant had selected a set of farmers in the area for growing seeds on its behalf. After entering into agreements with the selected farmers, the appellant supplied foundation seeds to them for a price, with an assurance that within few months they will be able to earn profit. The seeds sown under the supervision of the expert deputed by the appellant. The entire crop was to be purchased by the appellant. The agreements entered into between the appellant and the growers clearly postulated supply of the foundation seeds by the appellant with an assurance that the crop will be purchased by it. It is neither the pleaded case of the appellant nor any evidence was produced before any of the Consumer Forums that the growers had the freedom to sell the seeds in the open market or to any person other than the appellant. Therefore, it is not possible to take the view that the growers had purchased the seeds for resale or for any commercial purpose and they are excluded from the definition of the term `consumer. As a matter of fact, the evidence brought on record shows that the growers had agreed to produce seeds on behalf of the appellant for the purpose of earning their livelihood by using their skills and labourA reading of the plain language of that section shows that the District Forum can call upon the complainant to provide a sample of goods if it is satisfied that the defect in the goods cannot be determined without proper analysis or test. After the sample is obtained, the same is required to be sent to an appropriate laboratory for analysis or test for the purpose of finding out whether the goods suffer from any defect as alleged in the complaint or from any other defect. In some of these cases, the District Forums had appointed agricultural experts as Court Commissioners and directed them to inspect the fields of the respondents and submit report about the status of the crops. In one or two cases the Court appointed Advocate Commissioner with liberty to him to avail the services of agricultural experts for ascertaining the true status of the crops. The reports of the agricultural experts produced before the District Forum unmistakably revealed that the crops had failed because of defective seeds/foundation seeds. After examining the reports the District Forums felt satisfied that the seeds were defective and this is the reason why the complainants were not called upon to provide samples of the seeds for getting the same analysed/tested in an appropriate laboratory. In our view, the procedure adopted by the District Forum was in no way contrary to Section 13(1)(c) of the Consumer Act and the appellant cannot seek annulment of well-reasoned orders passed by three Consumer Forums on the specious ground that the procedure prescribed under Section 13(1)(c) of the Consumer Act had not been followed36. It may also be mentioned that there was abject failure on the appellants part to assist the District Forum by providing samples of the varieties of seeds sold to the respondents. Rule 13(3) casts a duty on every person selling, keeping for sale, offering to sell, bartering or otherwise supplying any seed of notified kind or variety to keep over a period of three years a complete record of each lot of seeds sold except that any seed sample may be discarded one year after the entire lot represented by such sample has been disposed of. The sample of seed kept as part of the complete record has got to be of similar size and if required to be tested, the same shall be tested for determining the purity. The appellant is a large supplier of seeds to the farmers/growers and growers. Therefore, it was expected to keep the samples of the varieties of seeds sold/supplied to the respondents. Such samples could have been easily made available to the District Forums for being sent to an appropriate laboratory for the purpose of analysis or test. Why the appellant did not adopt that course has not been explained. Not only this, the officers of the appellant, who inspected the fields of the respondents could have collected the samples and got them tested in a designated laboratory for ascertaining the purity of the seeds and/or the extent of germination, etc. Why this was not done has also not been explained by the appellant. These omissions lend support to the plea of the respondents that the seeds sold/supplied by the appellant were defective39. The reasons assigned by the National Commission in the aforementioned three cases are similar to the reasons assigned by the State Commission which were approved by this Court in Maharashtra Hybrid Seeds Company Ltd. v. Alavalapati Chandra Reddy (supra) and in our view the proposition laid down in those cases represent the correct legal position
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Sharad Kumar Vs. Govt. Of Nct Of Delhi | is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organizations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Co. of India Ltd. vs. Burmah Shell Management Staff Assn. In All India Reserve Bank Employees Assn. vs. Reserve Bank of India it has been held by this Court that the word supervise and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what is substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of workman as defined in Section 2(s) of the Industrial Disputes Act". 29. The Rajasthan High Court in the case of S.L. Soni vs. Rajasthan Mineral Development Corporation Ltd., Jaipur, (1986) LAB I.C. 468, S.C. Agrawal, J. (as he then was) considering the question whether an Assistant Manager (Accounts) came within the meaning of expression workman under section 2(s) of the Act accepted the contention raised on behalf of the petitioner therein that the question could not be agitated before the High Court under Article 226 of the Constitution and the appropriate remedy for the petitioner was to seek a reference under Section 10 of the Industrial Disputes Act, made the following observations: "In my view the aforesaid contention urged by Shri Rangrajan must be accepted. In the present case there is a dispute between the parties as to whether the petitioner was a workman under section 2(s) of the Act at the time of the passing of the impugned order terminating his services. The said question involves determination of facts with regard to the nature of the duties that were being discharged by the petitioner while functioning as Assistant Manager (Accounts). Such a determination can only be made on the basis of evidence. The said question cannot be properly adjudicated in these proceedings under Article 226 of the Constitution and the appropriate remedy that was available for the petitioner was to raise an industrial dispute and have it referred for adjudication under Section 10 of the Act. The first contention urged by Shri Singhvi cannot, therefore, be accepted." (Emphasis supplied) 30. Testing the case in hand on the touchstone of the principles laid down in the decided cases we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the respondent with a view to ascertain whether he came within the meaning of section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him which is extraneous to the matters relevant for the purpose. From the appointment order dated 21/22 April 1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of the section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of section 2(s) of the Act, thereby termination the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable. 31. Accordingly, the | 1[ds]we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the respondent with a view to ascertain whether he came within the meaning of section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him which is extraneous to the matters relevant for the purpose. From the appointment order dated 21/22 April 1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of the section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of section 2(s) of the Act, thereby termination the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable. | 1 | 6,012 | 339 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organizations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Co. of India Ltd. vs. Burmah Shell Management Staff Assn. In All India Reserve Bank Employees Assn. vs. Reserve Bank of India it has been held by this Court that the word supervise and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what is substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of workman as defined in Section 2(s) of the Industrial Disputes Act". 29. The Rajasthan High Court in the case of S.L. Soni vs. Rajasthan Mineral Development Corporation Ltd., Jaipur, (1986) LAB I.C. 468, S.C. Agrawal, J. (as he then was) considering the question whether an Assistant Manager (Accounts) came within the meaning of expression workman under section 2(s) of the Act accepted the contention raised on behalf of the petitioner therein that the question could not be agitated before the High Court under Article 226 of the Constitution and the appropriate remedy for the petitioner was to seek a reference under Section 10 of the Industrial Disputes Act, made the following observations: "In my view the aforesaid contention urged by Shri Rangrajan must be accepted. In the present case there is a dispute between the parties as to whether the petitioner was a workman under section 2(s) of the Act at the time of the passing of the impugned order terminating his services. The said question involves determination of facts with regard to the nature of the duties that were being discharged by the petitioner while functioning as Assistant Manager (Accounts). Such a determination can only be made on the basis of evidence. The said question cannot be properly adjudicated in these proceedings under Article 226 of the Constitution and the appropriate remedy that was available for the petitioner was to raise an industrial dispute and have it referred for adjudication under Section 10 of the Act. The first contention urged by Shri Singhvi cannot, therefore, be accepted." (Emphasis supplied) 30. Testing the case in hand on the touchstone of the principles laid down in the decided cases we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the respondent with a view to ascertain whether he came within the meaning of section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him which is extraneous to the matters relevant for the purpose. From the appointment order dated 21/22 April 1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of the section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of section 2(s) of the Act, thereby termination the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable. 31. Accordingly, the
### Response:
1
### Explanation:
we have no hesitation to hold that the High Court was clearly in error in confirming the order of rejection of reference passed by the State government merely taking note of the designation of the post held by the respondent i.e. Area Sales Executive. As noted earlier determination of this question depends on the types of duties assigned to or discharged by the employee and not merely on the designation of the post held by him. We do not find that the State Government or even the High Court has made any attempt to go into the different types of duties discharged by the respondent with a view to ascertain whether he came within the meaning of section 2(s) of the Act. The State Government, as noted earlier, merely considered the designation of the post held by him which is extraneous to the matters relevant for the purpose. From the appointment order dated 21/22 April 1983 in which are enumerated certain duties which the appellant may be required to discharge it cannot be held therefrom that he did not come within the first portion of the section 2(s) of the Act. We are of the view that determination of the question requires examination of factual matters for which materials including oral evidence will have to be considered. In such a matter the State Government could not arrogate on to itself the power to adjudicate on the question and hold that the respondent was not a workman within the meaning of section 2(s) of the Act, thereby termination the proceedings prematurely. Such a matter should be decided by the Industrial Tribunal or Labour Court on the basis of the materials to be placed before it by the parties. Thus the rejection order passed by the State Government is clearly erroneous and the order passed by the High Court maintaining the same is unsustainable.
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Revanasiddayya Vs. Gangamma @ Shashikala & Another | 06.11.1986(Ex-P-1) from the respondents in relation to the suit land. The appellants suit for specific performance was dismissed in 2009 and the appeal filed by the appellant against the dismissal of his suit was also dismissed by the District & Sessions Judge, Gagad in R.A. No.31 of 2009 on 16.04.2012. Thereafter, it was not pursued by the appellant.11. The respondents, felt aggrieved of the judgment/decree of the Trial Court dated 09.02.2000, filed first appeal being RFA No. 242/2004 in the High Court of Karnataka. So far as the appellant is concerned, he did not file any cross appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") nor filed any cross objection under Order 41 Rule 22 of the Code in respondents first appeal to challenge the finding of ownership of the respondents, which was against the appellant.12. Therefore, the only question, which arose before the High Court, was as to whether the Trial Court was justified in dismissing the suit insofar as it relates to claim for possession of the suit land.13. By Judgment/decree dated 25.10.2006, the High Court allowed the respondents first appeal, modified the judgment/decree of the Trial Court and passed a decree for possession of the suit land against the appellant in relation to the suit land. It was held that the respondents are entitled to claim possession of the suit land from the appellant. In this way, the respondents entire suit stood decreed by the High Court.14. Felt aggrieved of the impugned judgment/decree passed by the High Court, the appellant(defendant No.1) has filed the present appeal by way of special leave in this Court.15. Heard Mr. Trideep Pais, learned counsel for the appellant and Mr. Ankolekar Gurudatta and Mr. Shantha Kumar Mahale, learned counsel for the respondents.16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to uphold the findings of the High Court but, at the same time, modify the impugned judgment and issue directions for ensuring its compliance by the parties to this appeal as indicated below.17. In our considered opinion, one of the effects of the dismissal of appellants suit/appeal, which was filed for specific performance of the agreement, was that the appellant was not entitled to retain possession of the suit land. In other words, the possession of the appellant on the suit land, after the dismissal of his suit for specific performance, became unauthorized and illegal thereby entitling the respondents to claim back the same from the appellant on the strength of their ownership.18. The appellant was, however, entitled to defend his possession over the suit land by taking recourse to the provisions of Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred to as "T.P. Act") but once his suit for specific performance stood dismissed, the protection available under Section 53-A of the T.P. Act was no longer available to him.19. So far as the present appeal is concerned, it does not arise out of the suit filed by the appellant against the respondents but arises out of a suit filed by the respondents against the appellant. We cannot, therefore, examine the legality and correctness of judgment/decree passed in appellants suit/appeal but can certainly examine its effect while examining the legality and correctness of the impugned judgment.20. In our considered opinion, the Trial Court as also the High Court were justified in declaring the respondents as owners of the suit land and were also justified in passing a decree for possession against the appellant.21. It is for the reasons that firstly, the appellant never disputed the respondents ownership over the suit land and indeed rightly. Secondly, since the respondents late father had placed the appellant in possession of the suit land pursuant to part performance of the agreement in question (EX-P-1), the appellant could defend his possession against the true owner (respondents) on the strength of such agreement subject to his proving the requirements of Section 53-A of the T.P. Act.22. Since the appellants suit/appeal for specific performance was dismissed, his possession over the suit land became unauthorized. It is for these two reasons, the High Court was justified in passing a decree for possession against the appellant in relation to the suit land. We, therefore, find no justification to set aside the findings of the High Court. It is in conformity with the legal principles applicable to the fact of this case.23. This leaves us to examine only one question, which, in our opinion, arises in the case but does not appear to have been dealt with in two suits filed by the parties against each other. In the interest of justice, we consider it necessary to deal with the question with a view to give quietus to the litigation which is pending between the parties for the last 3 decades.24. As mentioned above, it is not in dispute that the appellant had paid a sum of Rs. 1,00,000/- to the respondents late father by way of earnest money for purchasing the suit land. It is also not in dispute that the respondents late father had placed the appellant in possession of the suit land in 1986. It is also not in dispute that since then the appellant continued to remain in possession of the suit land though, in the meantime, suffered impugned decree for dis-possession.25. In our opinion, in the light of such factual undisputed scenario emerging in the case, the appellant is held entitled to claim refund of earnest money of Rs. 1,00,000/- from the respondents. One cannot dispute the legal position that once the bargain to sale/purchase of any land fails, the unsuccessful buyer becomes entitled in law to claim refund of earnest money from the seller under Section 22 of the Indian Specific relief Act. Similarly, the appellant is also, in turn, liable to restore the possession of the suit land pursuant to the impugned judgment/decree suffered by him and which we have upheld. | 0[ds]16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to uphold the findings of the High Court but, at the same time, modify the impugned judgment and issue directions for ensuring its compliance by the parties to this appeal as indicated below.17. In our considered opinion, one of the effects of the dismissal of appellants suit/appeal, which was filed for specific performance of the agreement, was that the appellant was not entitled to retain possession of the suit land. In other words, the possession of the appellant on the suit land, after the dismissal of his suit for specific performance, became unauthorized and illegal thereby entitling the respondents to claim back the same from the appellant on the strength of their ownership.So far as the present appeal is concerned, it does not arise out of the suit filed by the appellant against the respondents but arises out of a suit filed by the respondents against the appellant. We cannot, therefore, examine the legality and correctness of judgment/decree passed in appellants suit/appeal but can certainly examine its effect while examining the legality and correctness of the impugned judgment.20. In our considered opinion, the Trial Court as also the High Court were justified in declaring the respondents as owners of the suit land and were also justified in passing a decree for possession against the appellant.21. It is for the reasons that firstly, the appellant never disputed the respondents ownership over the suit land and indeed rightly. Secondly, since the respondents late father had placed the appellant in possession of the suit land pursuant to part performance of the agreement in questionthe appellant could defend his possession against the true owner (respondents) on the strength of such agreement subject to his proving the requirements of Sectionof the T.P. Act.22. Since the appellants suit/appeal for specific performance was dismissed, his possession over the suit land became unauthorized. It is for these two reasons, the High Court was justified in passing a decree for possession against the appellant in relation to the suit land.This leaves us to examine only one question, which, in our opinion, arises in the case but does not appear to have been dealt with in two suits filed by the parties against each other. In the interest of justice, we consider it necessary to deal with the question with a view to give quietus to the litigation which is pending between the parties for the last 3 decades.24. As mentioned above, it is not in dispute that the appellant had paid a sum of Rs. 1,00,000/In our opinion, in the light of such factual undisputed scenario emerging in the case, the appellant is held entitled to claim refund of earnest money of Rs. 1,00,000/from the respondents. One cannot dispute the legal position that once the bargain to sale/purchase of any land fails, the unsuccessful buyer becomes entitled in law to claim refund of earnest money from the seller under Section 22 of the Indian Specific relief Act. Similarly, the appellant is also, in turn, liable to restore the possession of the suit land pursuant to the impugned judgment/decree suffered by him and which we have upheld. | 0 | 1,838 | 591 | ### 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:
06.11.1986(Ex-P-1) from the respondents in relation to the suit land. The appellants suit for specific performance was dismissed in 2009 and the appeal filed by the appellant against the dismissal of his suit was also dismissed by the District & Sessions Judge, Gagad in R.A. No.31 of 2009 on 16.04.2012. Thereafter, it was not pursued by the appellant.11. The respondents, felt aggrieved of the judgment/decree of the Trial Court dated 09.02.2000, filed first appeal being RFA No. 242/2004 in the High Court of Karnataka. So far as the appellant is concerned, he did not file any cross appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") nor filed any cross objection under Order 41 Rule 22 of the Code in respondents first appeal to challenge the finding of ownership of the respondents, which was against the appellant.12. Therefore, the only question, which arose before the High Court, was as to whether the Trial Court was justified in dismissing the suit insofar as it relates to claim for possession of the suit land.13. By Judgment/decree dated 25.10.2006, the High Court allowed the respondents first appeal, modified the judgment/decree of the Trial Court and passed a decree for possession of the suit land against the appellant in relation to the suit land. It was held that the respondents are entitled to claim possession of the suit land from the appellant. In this way, the respondents entire suit stood decreed by the High Court.14. Felt aggrieved of the impugned judgment/decree passed by the High Court, the appellant(defendant No.1) has filed the present appeal by way of special leave in this Court.15. Heard Mr. Trideep Pais, learned counsel for the appellant and Mr. Ankolekar Gurudatta and Mr. Shantha Kumar Mahale, learned counsel for the respondents.16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to uphold the findings of the High Court but, at the same time, modify the impugned judgment and issue directions for ensuring its compliance by the parties to this appeal as indicated below.17. In our considered opinion, one of the effects of the dismissal of appellants suit/appeal, which was filed for specific performance of the agreement, was that the appellant was not entitled to retain possession of the suit land. In other words, the possession of the appellant on the suit land, after the dismissal of his suit for specific performance, became unauthorized and illegal thereby entitling the respondents to claim back the same from the appellant on the strength of their ownership.18. The appellant was, however, entitled to defend his possession over the suit land by taking recourse to the provisions of Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred to as "T.P. Act") but once his suit for specific performance stood dismissed, the protection available under Section 53-A of the T.P. Act was no longer available to him.19. So far as the present appeal is concerned, it does not arise out of the suit filed by the appellant against the respondents but arises out of a suit filed by the respondents against the appellant. We cannot, therefore, examine the legality and correctness of judgment/decree passed in appellants suit/appeal but can certainly examine its effect while examining the legality and correctness of the impugned judgment.20. In our considered opinion, the Trial Court as also the High Court were justified in declaring the respondents as owners of the suit land and were also justified in passing a decree for possession against the appellant.21. It is for the reasons that firstly, the appellant never disputed the respondents ownership over the suit land and indeed rightly. Secondly, since the respondents late father had placed the appellant in possession of the suit land pursuant to part performance of the agreement in question (EX-P-1), the appellant could defend his possession against the true owner (respondents) on the strength of such agreement subject to his proving the requirements of Section 53-A of the T.P. Act.22. Since the appellants suit/appeal for specific performance was dismissed, his possession over the suit land became unauthorized. It is for these two reasons, the High Court was justified in passing a decree for possession against the appellant in relation to the suit land. We, therefore, find no justification to set aside the findings of the High Court. It is in conformity with the legal principles applicable to the fact of this case.23. This leaves us to examine only one question, which, in our opinion, arises in the case but does not appear to have been dealt with in two suits filed by the parties against each other. In the interest of justice, we consider it necessary to deal with the question with a view to give quietus to the litigation which is pending between the parties for the last 3 decades.24. As mentioned above, it is not in dispute that the appellant had paid a sum of Rs. 1,00,000/- to the respondents late father by way of earnest money for purchasing the suit land. It is also not in dispute that the respondents late father had placed the appellant in possession of the suit land in 1986. It is also not in dispute that since then the appellant continued to remain in possession of the suit land though, in the meantime, suffered impugned decree for dis-possession.25. In our opinion, in the light of such factual undisputed scenario emerging in the case, the appellant is held entitled to claim refund of earnest money of Rs. 1,00,000/- from the respondents. One cannot dispute the legal position that once the bargain to sale/purchase of any land fails, the unsuccessful buyer becomes entitled in law to claim refund of earnest money from the seller under Section 22 of the Indian Specific relief Act. Similarly, the appellant is also, in turn, liable to restore the possession of the suit land pursuant to the impugned judgment/decree suffered by him and which we have upheld.
### Response:
0
### Explanation:
16. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to uphold the findings of the High Court but, at the same time, modify the impugned judgment and issue directions for ensuring its compliance by the parties to this appeal as indicated below.17. In our considered opinion, one of the effects of the dismissal of appellants suit/appeal, which was filed for specific performance of the agreement, was that the appellant was not entitled to retain possession of the suit land. In other words, the possession of the appellant on the suit land, after the dismissal of his suit for specific performance, became unauthorized and illegal thereby entitling the respondents to claim back the same from the appellant on the strength of their ownership.So far as the present appeal is concerned, it does not arise out of the suit filed by the appellant against the respondents but arises out of a suit filed by the respondents against the appellant. We cannot, therefore, examine the legality and correctness of judgment/decree passed in appellants suit/appeal but can certainly examine its effect while examining the legality and correctness of the impugned judgment.20. In our considered opinion, the Trial Court as also the High Court were justified in declaring the respondents as owners of the suit land and were also justified in passing a decree for possession against the appellant.21. It is for the reasons that firstly, the appellant never disputed the respondents ownership over the suit land and indeed rightly. Secondly, since the respondents late father had placed the appellant in possession of the suit land pursuant to part performance of the agreement in questionthe appellant could defend his possession against the true owner (respondents) on the strength of such agreement subject to his proving the requirements of Sectionof the T.P. Act.22. Since the appellants suit/appeal for specific performance was dismissed, his possession over the suit land became unauthorized. It is for these two reasons, the High Court was justified in passing a decree for possession against the appellant in relation to the suit land.This leaves us to examine only one question, which, in our opinion, arises in the case but does not appear to have been dealt with in two suits filed by the parties against each other. In the interest of justice, we consider it necessary to deal with the question with a view to give quietus to the litigation which is pending between the parties for the last 3 decades.24. As mentioned above, it is not in dispute that the appellant had paid a sum of Rs. 1,00,000/In our opinion, in the light of such factual undisputed scenario emerging in the case, the appellant is held entitled to claim refund of earnest money of Rs. 1,00,000/from the respondents. One cannot dispute the legal position that once the bargain to sale/purchase of any land fails, the unsuccessful buyer becomes entitled in law to claim refund of earnest money from the seller under Section 22 of the Indian Specific relief Act. Similarly, the appellant is also, in turn, liable to restore the possession of the suit land pursuant to the impugned judgment/decree suffered by him and which we have upheld.
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Manjeet Singh Vs. National Insurance Company Ltd. & Another | Deepak Gupta, J. 1. Leave granted. 2. None has put in appearance on behalf of the respondent no. 2 despite service. Hence, the matter has been heard in the absence of the learned counsel for the respondent no. 2. 3. Briefly stated the facts of the case are that the appellant Manjeet Singh purchased a second-hand Tata open truck under a Hire Purchase agreement dated 13.10.2003 for a sum of Rs. 8,57,000/- from Respondent No.2. The vehicle was hypothecated in favour of Respondent No.2. It was insured for a value of Rs.7,28,000/- and the insurance policy was valid from 25.09.2004 to 24.09.2005. On 12.12.2004, the vehicle was being driven by Sanjay Kumar on the National Highway near Karnal. Some persons gave a signal to the driver to stop the vehicle. After he stopped, they requested the driver to give them lift up to Yamuna Nagar since no other mode of transport was available. Since it was a cold wintery night, the driver gave a lift to these persons. After a little while, one of the passengers requested the driver to stop the truck on the pretext that he had to answer the call of nature. When the truck driver stopped the truck, the three passengers assaulted the driver, tied his hands and legs with a rope and threw him in a nearby field and fled away with the vehicle.4. An FIR was lodged at Police Station, Ladwa on 13.12.2004 and the respondent no. 2, finance company was intimated about the theft. The complainant had also given a letter of authority to the finance company to negotiate and settle the claim with the insurance company. However, no settlement was arrived at and the claim was not settled and repudiated vide letter dated 11.11.2005 on the ground of breach of terms of the policy. The owner-complainant filed a claim petition before the District Consumer Disputes Redressal Forum (for short ‘the District Forum’) alleging that the insurance company was liable to compensate him for the loss caused to him by the theft of the truck. The main defence taken by the respondent no. 2, insurance company was that the driver of the vehicle, by giving a lift to the passengers, had violated the terms of the policy and, as such, there was breach of policy and the insurance company was not liable. This ground found favour with the District Forum. The appeal filed by the claimant before the State Consumer Disputes Redressal Commission (for short ‘the State Commission’) was rejected and so was the revision filed before the National Consumer Disputes Redressal Commission (for short ‘the National Commission’). The District Forum also rejected the claim on the ground that the arbitration proceedings had been initiated by the Respondent No. 2, finance company against the complainant and they were at the final stage. 5. As far as the first ground is concerned, we are of the considered opinion, that the District Forum had not properly appreciated the scope and ambit of the policy. The violation of the condition should be such a fundamental breach so that the claimant cannot claim any amount whatsoever. As far as the violation in carrying passengers is concerned, this has consistently been held not to be a fundamental breach and, in this behalf, we may make reference to the judgments of this Court in the case of National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 , National Insurance Co. Ltd. v. Nitin Khandelwal, (2008) 11 SCC 259 , Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 and B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996) 4 SCC 647. 6. In Lakhmi Chand case (supra), this Court held that to avoid its liability, the insurance company must not only establish the defence that the policy has been breached, but must also show that the breach of the policy is so fundamental in nature that it brings the contract to an end. 7. In the present case, the appellant who is the owner, was not at fault. His driver gave a lift to some passengers. Carrying such passengers may be a breach of the policy, but it cannot be said to be such a fundamental breach as to bring the insurance policy to an end and to terminate the insurance policy. The driver, on a cold wintery night, gave lift to some persons standing on the road. It was a humanitarian gesture. It cannot be said to be such a breach that it nullifies the policy. No doubt, these passengers turned against the driver and stole the truck, but this, the driver could not have foreseen. In the cases cited above, such claims where there is breach of policy, have been treated to be non-standard claims and have been directed to be settled at 75%.8. As far as the second ground is concerned, we fail to understand how the arbitration proceedings between the financer and the insurer, relating to recovery of the loan amount, can in any way, negate the rights of the insured against the insurance company. | 1[ds]5. As far as the first ground is concerned, we are of the considered opinion, that the District Forum had not properly appreciated the scope and ambit of the policy. The violation of the condition should be such a fundamental breach so that the claimant cannot claim any amount whatsoever. As far as the violation in carrying passengers is concerned, this has consistently been held not to be a fundamentalIn the present case, the appellant who is the owner, was not at fault. His driver gave a lift to some passengers. Carrying such passengers may be a breach of the policy, but it cannot be said to be such a fundamental breach as to bring the insurance policy to an end and to terminate the insurance policy. The driver, on a cold wintery night, gave lift to some persons standing on the road. It was a humanitarian gesture. It cannot be said to be such a breach that it nullifies the policy. No doubt, these passengers turned against the driver and stole the truck, but this, the driver could not have foreseen. In the cases cited above, such claims where there is breach of policy, have been treated to beclaims and have been directed to be settled at 75%.8. As far as the second ground is concerned, we fail to understand how the arbitration proceedings between the financer and the insurer, relating to recovery of the loan amount, can in any way, negate the rights of the insured against the insurance company. | 1 | 958 | 290 | ### 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:
Deepak Gupta, J. 1. Leave granted. 2. None has put in appearance on behalf of the respondent no. 2 despite service. Hence, the matter has been heard in the absence of the learned counsel for the respondent no. 2. 3. Briefly stated the facts of the case are that the appellant Manjeet Singh purchased a second-hand Tata open truck under a Hire Purchase agreement dated 13.10.2003 for a sum of Rs. 8,57,000/- from Respondent No.2. The vehicle was hypothecated in favour of Respondent No.2. It was insured for a value of Rs.7,28,000/- and the insurance policy was valid from 25.09.2004 to 24.09.2005. On 12.12.2004, the vehicle was being driven by Sanjay Kumar on the National Highway near Karnal. Some persons gave a signal to the driver to stop the vehicle. After he stopped, they requested the driver to give them lift up to Yamuna Nagar since no other mode of transport was available. Since it was a cold wintery night, the driver gave a lift to these persons. After a little while, one of the passengers requested the driver to stop the truck on the pretext that he had to answer the call of nature. When the truck driver stopped the truck, the three passengers assaulted the driver, tied his hands and legs with a rope and threw him in a nearby field and fled away with the vehicle.4. An FIR was lodged at Police Station, Ladwa on 13.12.2004 and the respondent no. 2, finance company was intimated about the theft. The complainant had also given a letter of authority to the finance company to negotiate and settle the claim with the insurance company. However, no settlement was arrived at and the claim was not settled and repudiated vide letter dated 11.11.2005 on the ground of breach of terms of the policy. The owner-complainant filed a claim petition before the District Consumer Disputes Redressal Forum (for short ‘the District Forum’) alleging that the insurance company was liable to compensate him for the loss caused to him by the theft of the truck. The main defence taken by the respondent no. 2, insurance company was that the driver of the vehicle, by giving a lift to the passengers, had violated the terms of the policy and, as such, there was breach of policy and the insurance company was not liable. This ground found favour with the District Forum. The appeal filed by the claimant before the State Consumer Disputes Redressal Commission (for short ‘the State Commission’) was rejected and so was the revision filed before the National Consumer Disputes Redressal Commission (for short ‘the National Commission’). The District Forum also rejected the claim on the ground that the arbitration proceedings had been initiated by the Respondent No. 2, finance company against the complainant and they were at the final stage. 5. As far as the first ground is concerned, we are of the considered opinion, that the District Forum had not properly appreciated the scope and ambit of the policy. The violation of the condition should be such a fundamental breach so that the claimant cannot claim any amount whatsoever. As far as the violation in carrying passengers is concerned, this has consistently been held not to be a fundamental breach and, in this behalf, we may make reference to the judgments of this Court in the case of National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 , National Insurance Co. Ltd. v. Nitin Khandelwal, (2008) 11 SCC 259 , Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 and B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996) 4 SCC 647. 6. In Lakhmi Chand case (supra), this Court held that to avoid its liability, the insurance company must not only establish the defence that the policy has been breached, but must also show that the breach of the policy is so fundamental in nature that it brings the contract to an end. 7. In the present case, the appellant who is the owner, was not at fault. His driver gave a lift to some passengers. Carrying such passengers may be a breach of the policy, but it cannot be said to be such a fundamental breach as to bring the insurance policy to an end and to terminate the insurance policy. The driver, on a cold wintery night, gave lift to some persons standing on the road. It was a humanitarian gesture. It cannot be said to be such a breach that it nullifies the policy. No doubt, these passengers turned against the driver and stole the truck, but this, the driver could not have foreseen. In the cases cited above, such claims where there is breach of policy, have been treated to be non-standard claims and have been directed to be settled at 75%.8. As far as the second ground is concerned, we fail to understand how the arbitration proceedings between the financer and the insurer, relating to recovery of the loan amount, can in any way, negate the rights of the insured against the insurance company.
### Response:
1
### Explanation:
5. As far as the first ground is concerned, we are of the considered opinion, that the District Forum had not properly appreciated the scope and ambit of the policy. The violation of the condition should be such a fundamental breach so that the claimant cannot claim any amount whatsoever. As far as the violation in carrying passengers is concerned, this has consistently been held not to be a fundamentalIn the present case, the appellant who is the owner, was not at fault. His driver gave a lift to some passengers. Carrying such passengers may be a breach of the policy, but it cannot be said to be such a fundamental breach as to bring the insurance policy to an end and to terminate the insurance policy. The driver, on a cold wintery night, gave lift to some persons standing on the road. It was a humanitarian gesture. It cannot be said to be such a breach that it nullifies the policy. No doubt, these passengers turned against the driver and stole the truck, but this, the driver could not have foreseen. In the cases cited above, such claims where there is breach of policy, have been treated to beclaims and have been directed to be settled at 75%.8. As far as the second ground is concerned, we fail to understand how the arbitration proceedings between the financer and the insurer, relating to recovery of the loan amount, can in any way, negate the rights of the insured against the insurance company.
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D. N. Banerji Vs. P. R. Mukherjee And Others | been constituted in connection with municipal and shire councils, municipal trusts and similar industries. The organization made claims in respect of work done by its members employed by certain municipal corporations in respect of the making, maintenance, control and lighting of public streets. The original reference stated the dispute as one which "relates to such operations of the said municipal corporations as do not consist of municipal trading," but it was subsequently amended during argument by substituting for the words "as do not consist of municipal trading" the words "as consist of the making, maintenance, control and lighting of public streets or any of them." (20) Two points were argued before the High court. The first one raised the question of the existence and extent of the immunity of municipalities as instrumentalities of government of the States, but it has no relevance here. The second point which is material was whether the employees of municipalities could be said to be engaged in an industrial dispute within the meaning of section 61, Ss. 35 of the Constitution. The corporations contended that they were not carrying on any Industry but only the normal functions assigned to them under the statute, and that there was therefore no Industrial dispute that could be referred to the arbitration court. The meaning of the words " Industrial disputes " used in the said sub-section had therefore to be ascertained and adjudged. The majority of the learned judges-four against two-decided in Favour of the union. Bach side put forward an extreme contention. For the claimant it was urged that "industrial" meant simply relating to industry in the abstract," whether it be in the exercise of trade, commerce, science or learned professions. The corporations contended that "industrial dispute" meant a "trade dispute." and that "trade dispute" means "a dispute in trade carried only the employer for profit." A formula midway between these two extremes was postulated in these terms by Isaccs and Rich, JJ. who were two out of the four who constituted the majority : "Industrial disputes occur when, in relation to operations In which capital and labour are contributed in co-operation for the satisfaction of human wants and 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 and conditions of their co-operation." (21) After giving copious extracts from the report of the Royal Commission appointed in 1890 in England to deal with labour problems, they summed up their final conclusion in these words at page 564 : "The question, of profit-making may be Important from an income-tax point of view, as in many municipal cases in England but from an industrial dispute point of view, it cannot matter whether the expenditure Is met by fares from passengers or from rates." (22) Dealing with the insistence by the corporations of the need for the profit-making motive as an essential element before one can say that a trade dispute or industrial dispute has arisen, Powers. J., who was also the deputy president of the arbitration tribunal, observed: " So far as the question in this cases is concerned, as the argument proceeded the ground mostly relied upon (after the councils were held not to be exempt as State instrumentalities) was that the work was not carried on by the municipal corporations for profit in the ordinal sense of the the term, although it would generally speaking be carried on by the councils themselves to save contractors profits. If that argument, were sufficient, then a philanthropist who acquired a clothing factory and employed the same 202 employees as the previous owner had employed would not be engaged in an occupation about which an industrial dispute could arise, if he distributed the clothes made to the poor free of charge or even if he distributed them to the poor at the bare cost of production. If the contention of the respondents is correct, a private company carrying on a ferry would be engaged in an industrial occupation. If a municipal corporation carried It on, it would not be industrial. The same argument would apply to baths, bridge building, quarries, sanitary contracts, gas making for lighting streets and public halls, municipal building of houses or halls, and many other similar industrial undertakings. Even coal-mining for use on municipal railways or tramways would not be industrial work if the contention of the respondents is correct. If the works In question are carried out by contractors or by private individuals it is said to be industrial, but not industrial within the meaning of the Arbitration Act or Constitution if carried out by municipal corporations. I cannot accept that view." (23) Having regard to the definitions found in our Act, the aim or objective that the legislature had in view, and the nature, variety and range of, disputes that occur between employers and employees, we are forced to the conclusion that the definitions in our Act include also disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying out of a trade or business. It is unnecessary to decide whether disputes arising in relation to purely administrative work fall within their ambit. After all whether there is an industrial dispute at all is for government primarily to find out, for It is only then it has jurisdiction to refer. Moreover, it is not every case of an industrial dispute that government Is bound to refer. They may refer some, but may not also. It is a question of expediency. (24) There was no ground urged before us or before the High court that the sanitary inspector and the head clerk of the municipality were officers and not "workmen" within the meaning of the Act. The dispute raised on their behalf by the workers union of which they were members is, in our view, an "industrial dispute" within the meaning of the Act. | 0[ds](4) Whether on the facts of a particular case the dismissal of an employee was wrongful or justified is a question primarily for the tribunal to decide, and here the tribunal held that the dismissals were clear cases of victimization and hence wrongful. Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High court under articles 226 and 227 of the Constitution to interfere(23) Having regard to the definitions found in our Act, the aim or objective that the legislature had in view, and the nature, variety and range of, disputes that occur between employers and employees, we are forced to the conclusion that the definitions in our Act include also disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying out of a trade or business. It is unnecessary to decide whether disputes arising in relation to purely administrative work fall within their ambit. After all whether there is an industrial dispute at all is for government primarily to find out, for It is only then it has jurisdiction to refer. Moreover, it is not every case of an industrial dispute that government Is bound to refer. They may refer some, but may not also. It is a question of expediency(24) There was no ground urged before us or before the High court that the sanitary inspector and the head clerk of the municipality were officers and not "workmen" within the meaning of the Act. The dispute raised on their behalf by the workers union of which they were members is, in our view, an "industrial dispute" within the meaning of the Act. | 0 | 5,644 | 325 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
been constituted in connection with municipal and shire councils, municipal trusts and similar industries. The organization made claims in respect of work done by its members employed by certain municipal corporations in respect of the making, maintenance, control and lighting of public streets. The original reference stated the dispute as one which "relates to such operations of the said municipal corporations as do not consist of municipal trading," but it was subsequently amended during argument by substituting for the words "as do not consist of municipal trading" the words "as consist of the making, maintenance, control and lighting of public streets or any of them." (20) Two points were argued before the High court. The first one raised the question of the existence and extent of the immunity of municipalities as instrumentalities of government of the States, but it has no relevance here. The second point which is material was whether the employees of municipalities could be said to be engaged in an industrial dispute within the meaning of section 61, Ss. 35 of the Constitution. The corporations contended that they were not carrying on any Industry but only the normal functions assigned to them under the statute, and that there was therefore no Industrial dispute that could be referred to the arbitration court. The meaning of the words " Industrial disputes " used in the said sub-section had therefore to be ascertained and adjudged. The majority of the learned judges-four against two-decided in Favour of the union. Bach side put forward an extreme contention. For the claimant it was urged that "industrial" meant simply relating to industry in the abstract," whether it be in the exercise of trade, commerce, science or learned professions. The corporations contended that "industrial dispute" meant a "trade dispute." and that "trade dispute" means "a dispute in trade carried only the employer for profit." A formula midway between these two extremes was postulated in these terms by Isaccs and Rich, JJ. who were two out of the four who constituted the majority : "Industrial disputes occur when, in relation to operations In which capital and labour are contributed in co-operation for the satisfaction of human wants and 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 and conditions of their co-operation." (21) After giving copious extracts from the report of the Royal Commission appointed in 1890 in England to deal with labour problems, they summed up their final conclusion in these words at page 564 : "The question, of profit-making may be Important from an income-tax point of view, as in many municipal cases in England but from an industrial dispute point of view, it cannot matter whether the expenditure Is met by fares from passengers or from rates." (22) Dealing with the insistence by the corporations of the need for the profit-making motive as an essential element before one can say that a trade dispute or industrial dispute has arisen, Powers. J., who was also the deputy president of the arbitration tribunal, observed: " So far as the question in this cases is concerned, as the argument proceeded the ground mostly relied upon (after the councils were held not to be exempt as State instrumentalities) was that the work was not carried on by the municipal corporations for profit in the ordinal sense of the the term, although it would generally speaking be carried on by the councils themselves to save contractors profits. If that argument, were sufficient, then a philanthropist who acquired a clothing factory and employed the same 202 employees as the previous owner had employed would not be engaged in an occupation about which an industrial dispute could arise, if he distributed the clothes made to the poor free of charge or even if he distributed them to the poor at the bare cost of production. If the contention of the respondents is correct, a private company carrying on a ferry would be engaged in an industrial occupation. If a municipal corporation carried It on, it would not be industrial. The same argument would apply to baths, bridge building, quarries, sanitary contracts, gas making for lighting streets and public halls, municipal building of houses or halls, and many other similar industrial undertakings. Even coal-mining for use on municipal railways or tramways would not be industrial work if the contention of the respondents is correct. If the works In question are carried out by contractors or by private individuals it is said to be industrial, but not industrial within the meaning of the Arbitration Act or Constitution if carried out by municipal corporations. I cannot accept that view." (23) Having regard to the definitions found in our Act, the aim or objective that the legislature had in view, and the nature, variety and range of, disputes that occur between employers and employees, we are forced to the conclusion that the definitions in our Act include also disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying out of a trade or business. It is unnecessary to decide whether disputes arising in relation to purely administrative work fall within their ambit. After all whether there is an industrial dispute at all is for government primarily to find out, for It is only then it has jurisdiction to refer. Moreover, it is not every case of an industrial dispute that government Is bound to refer. They may refer some, but may not also. It is a question of expediency. (24) There was no ground urged before us or before the High court that the sanitary inspector and the head clerk of the municipality were officers and not "workmen" within the meaning of the Act. The dispute raised on their behalf by the workers union of which they were members is, in our view, an "industrial dispute" within the meaning of the Act.
### Response:
0
### Explanation:
(4) Whether on the facts of a particular case the dismissal of an employee was wrongful or justified is a question primarily for the tribunal to decide, and here the tribunal held that the dismissals were clear cases of victimization and hence wrongful. Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High court under articles 226 and 227 of the Constitution to interfere(23) Having regard to the definitions found in our Act, the aim or objective that the legislature had in view, and the nature, variety and range of, disputes that occur between employers and employees, we are forced to the conclusion that the definitions in our Act include also disputes that might arise between municipalities and their employees in branches of work that can be said to be analogous to the carrying out of a trade or business. It is unnecessary to decide whether disputes arising in relation to purely administrative work fall within their ambit. After all whether there is an industrial dispute at all is for government primarily to find out, for It is only then it has jurisdiction to refer. Moreover, it is not every case of an industrial dispute that government Is bound to refer. They may refer some, but may not also. It is a question of expediency(24) There was no ground urged before us or before the High court that the sanitary inspector and the head clerk of the municipality were officers and not "workmen" within the meaning of the Act. The dispute raised on their behalf by the workers union of which they were members is, in our view, an "industrial dispute" within the meaning of the Act.
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S. KULDEEP SINGH & ANR Vs. S. PRITHPAL SINGH | in paragraph 6 of the Suit. In circumstances of this kind, we are quite certain that the compromise was required to be registered, under Section 49 of the Registration Act, 1977 and also under Section 138 of the J&K Transfer of Property Act. Without such registration no title can fructify for the plaintiff from the documents in question. 27. Furthermore, the compromise and the DCs consequent Order, was passed in a revenue proceeding and this was definitely not a part of a Court proceeding. That being the case, the compromise did not fall under the exception category under Section 17(2)(vi) of Registration Act, 1977 (as applicable to then State of J&K). The above makes it abundantly clear that the compromise in order to have legal effect needed registration under the Registration Act, 1977. 28. Significantly, the DCs 24.12.1975 order based on the Compromise, also dealt with 6 Kanals land forming part of Survey No. 1829 & 1838 which went to the ownership of the tenant - Jalil Khan. The subject compromise or the DCs order was not restricted only to 11 Kanals and 15 Marlas as claimed by the Plaintiff. These circumstances would imply that the compromise required registration for it to be of any legal effect. Since title is claimed, and the plaintiff founded his entire case on the compromise, it would necessarily require registration. Accordingly, question B is answered in affirmative. 29. The defendants have also unsuccessfully argued before the High Court that the jurisdiction of the Deputy Commissioner to exercise powers under the J&K Agrarian Reforms Act, 1972 stood suspended on the date of passing the Compromise Decree. Such a question of law has a material bearing on this litigation and the same needs to be considered. The 1972 Act as noted earlier, was suspended during 25.03.1975 to 30.03.1976 and during this period the Compromise was recorded on 18.12.1975 and the 24.12.1975 Order was passed by the DC. The power exercised for these orders are traceable to the suspended provisions of the Act. Of course, the J&K Agrarian Reforms (Suspension of Operations) Act, 1975 did have a proviso which created exceptions for certain sections of the 1972 Act. The relevant part of the proviso reads thus; 4. Certain provisions of Act No. XXCI not suspended for the time being- (1) The provisions of Sections 15, 25, 26, 27, 28, and 51 and the provisions of Chapter V of the principal Act in so far as they relate to these sections and any rules, notifications, orders and instructions issued thereunder including any proceedings instituted or actions taken under the said provisions and pending on the date of commencement of this Act, shall be continued and enforced as heretofore:… 30. The above makes it clear that this case is outside the ambit of any of the exempted sections such as Section 15 (Prohibition on transfer of land), 25 (levy of annual tax), 27 (collection of tax), 28 (Determination of ques-levy of tax related), 51 (repeal & savings) of the 1972 Act. Only such provisions of Chapter V which were relatable to the aforesaid provisions were relevant, and not all sections were within the ambit of exception. Section 31 of the 1972 Act which provided for Appeals and Revisions, was not protected by Section 4 of the Suspension Act, 1975. Thus, the DC, in our mind lacked inherent jurisdiction to either entertain the appeal or endorse the compromise during the suspended phase. In cases where the authority lacked jurisdiction under a special Act and yet exercises powers, without authority of law, any order or decree so passed through such unlawful exercise of power, will be a legal nullity. The deficiency of jurisdiction of the authority cannot be cured by the consent of the parties. The challenge to such an incompetent order could be set up wherever it is sought to be enforced or relied upon, even in execution or in collateral proceedings (1991) 3 SCC 136, Para. 5 | (2017) 3 SCC 740, Para. 35. Accordingly answering in favour of the defendants, the DCs order in our opinion can have no legal effect as the same was passed during the operation of Suspension Act, 1975. We have found that the compromise being unregistered cannot confer title on the respondent. 31. The final issue for our consideration is whether estoppel principle would apply against the defendants in their challenge to DCs order. Equity as we know follows the law, and whenever there is a conflict between law and equity, it is the law which must prevail. Here the Latin maxim dura lex sed lex, which means the law is hard, but it is the law would apply. Equity can only supplement the law, but it cannot supplant or override it (2007) 2 SCC 230, Para. 29, and this would have a bearing against the respondent. 32. The records in the case show that Sucha Singh, during his life time, had cancelled the two Wills in favour of the plaintiff. This indicates that Sucha Singh was not interested to give any part of his property to the plaintiff. Even otherwise, the suit property is self-acquired property of Sucha Singh, and a donee cannot claim equity in respect of the disposal of self-acquired properties, by a donor. Equity is all about balancing the competing interests and due weightage must be given to the fact that the appellants have been in possession and was nurturing their fathers land for over four decades and the estoppel principle propounded against them by the respondent must give way to the law set out by the statute (2021) 3 SCC 401 . 33. Notwithstanding the concurrent finding against them, in a case like this, where the law leans in appellants favour, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co (2007) 8 SCC 120 ., the exercise of extraordinary jurisdiction under Article 136 is found to be merited in this matter. | 1[ds]18. In order to adjudicate the above issue, we need to look at the compromise in its intent and functioning. The compromise between the Plaintiff and Abdul Jalil Khan (tenant) was recorded in a proceeding for correction of revenue records under the 1972 Act and the Rules. There, the Plaintiff was admitted to be the owner and in possession of land which he personally cultivated. Sucha Singh with his thumb impression endorsed the compromise deed. On this the defendants have contended that the said statement has to be read in the context in which it was made and how the parties to the transaction understood the same. The plaintiff says that his adoptive father Sucha Singh intended to confer title on the Plaintiff and Sucha Singh would not have looked into the definition of owner under the 1972 Act, before making the endorsement on the compromise. On this, it cannot be ignored that the parties effectuated the transaction in a proceeding under the 1972 Act. Thus, the compromise exists within the four corners of the 1972 Act, and must therefore be read by applying the statutory provisions.19. Proceeding further, the definitions of owner and personal cultivation under Ss. 2(6) and (7) respectively of the 1972 Act are expansive. The definition of owner is an inclusive one. It includes not only the legal owner/proprietor, but also person claiming through the legal owner. Specifically, the adopted sons of the owner. Hence, the purpose of the compromise decree in the correction proceedings under Chapter III of the Rules pertain only to revenue entries, and the possession of land in capacity of a personal cultivator. This could hardly confer any lawful title on the plaintiff over Sucha Singhs land.20. The power under the 1973 Rules confers limited power to the circle officers and it is confined to verifying, amending, and authenticating revenue records as they existed on the cutoff date i.e., 1st September, 1971. Thus, it is clear that a mere affirmation in the context of revenue records and personal cultivation rights cannot be interpreted as an intention of Sucha Singh to confer title upon the Plaintiff. With his endorsement on the compromise, Sucha Singh perhaps intended to give the right of personal cultivation but the same does not in any manner suggest that Sucha Singh had intended to confer title on the plaintiff.21. It is also important to note that Plaintiff in his own testimony (led before Trial Court, and recorded in the Trial Court judgment) had stated that Sucha Singh prepared orchards. Albeit, by using the salary of Plaintiff. The land is therefore of the orchard category. In this situation, the land which is the subject matter of the Compromise being an Orchard stood excluded from the definition of land under S. 2(4) of the 1972 Act. As such, the title for such category of land could not vest with the Plaintiff. This determination of fact is essential to adjudicate the title and the issue was definitely raised in the LPA proceeding before the High Court, apart from being raised in the lower court also. In such a situation this Court is required to keep the orchard aspect in mind and also address the implication of the same on the contesting parties. The upshot of the above persuade us to hold that the compromise (18.12.1975) does not convey any lawful title on the Plaintiff.23. We are however unable to see the compromise as a kind of family arrangement. The compromise was not amongst family members but between the plaintiff and the tenant – Jalil Khan (not a family member). The statement of Sucha Singh I accept the compromise, is only with regard to the internal arrangement regarding the tenancy of Jalil Khan, and this will not make it a family arrangement. Moreover, the plea that compromise is a Family Arrangement is raised for the first time before this Court. The Plaintiff significantly had waived his claim to other assets left by Sucha Singh (on the basis that the Plaintiff is his adopted son), before the High Court. He cannot therefore be permitted to raise such a contention for the first time before this Court. Even otherwise, Jalil Khan was not a family member. Thus, he could not have been a party to a so called family arrangement. Besides, none of the other family members were parties to the said compromise either. Therefore, the documents in question would require registration and it cannot be treated as a family arrangement.24. It is pertinent to note that the ownership claim for the plaintiff is founded only on the compromise and the respondent is not claiming any antecedent title. The issue whether the compromise decree between parties to a suit proceeding, could vest or transfer title to one of them, was decided in Bhoop Singh v. Ram Singh Major [supra], where the requirement of registration of such compromise order which create new rights, title, or interest, was upheld in the following manner: -18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below:(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration.(3) If the decree were not to attract any of the clauses of sub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Courts cases, it is apparent that the decree would not require registration.(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.(5) If the property dealt with by the decree be not the subject-matter of the suit or proceeding, clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.25. Further, in K. Raghundandan & Ors. vs. Ali Hussain Sabir & Ors. [supra], while referring to Bhoop Singh [supra], the Court held that consent terms creating rights/title or interest for the first time, as distinguished from recognition of a right, would require registration if the value of property is above Rs. 100. This was affirmed by a three Judges bench in Phool Patti vs. Ram Singh [supra]. Lastly, in Ripudaman Singh vs. Tikka Maheshwar Chand (2021) 7 SCC 446, this Court held that where there is no pre-existing right, but right has been created by the compromise alone, such compromise creating new right, title or interest in immovable property of value of Rs. 100 or above, is compulsorily registrable.26. In the present case, the Appeal filed by the tenant – Jalil Khan arose from the change of the entry in the records during the process of verification under the 1972 Act. It was in this Appeal that the compromise was recorded and endorsed by the DCs Order, recognizing the possession of the Plaintiff for the very first time, as was also admitted by plaintiff in paragraph 6 of the Suit. In circumstances of this kind, we are quite certain that the compromise was required to be registered, under Section 49 of the Registration Act, 1977 and also under Section 138 of the J&K Transfer of Property Act. Without such registration no title can fructify for the plaintiff from the documents in question.27. Furthermore, the compromise and the DCs consequent Order, was passed in a revenue proceeding and this was definitely not a part of a Court proceeding. That being the case, the compromise did not fall under the exception category under Section 17(2)(vi) of Registration Act, 1977 (as applicable to then State of J&K). The above makes it abundantly clear that the compromise in order to have legal effect needed registration under the Registration Act, 1977.28. Significantly, the DCs 24.12.1975 order based on the Compromise, also dealt with 6 Kanals land forming part of Survey No. 1829 & 1838 which went to the ownership of the tenant - Jalil Khan. The subject compromise or the DCs order was not restricted only to 11 Kanals and 15 Marlas as claimed by the Plaintiff. These circumstances would imply that the compromise required registration for it to be of any legal effect. Since title is claimed, and the plaintiff founded his entire case on the compromise, it would necessarily require registration. Accordingly, question B is answered in affirmative.30. The above makes it clear that this case is outside the ambit of any of the exempted sections such as Section 15 (Prohibition on transfer of land), 25 (levy of annual tax), 27 (collection of tax), 28 (Determination of ques-levy of tax related), 51 (repeal & savings) of the 1972 Act. Only such provisions of Chapter V which were relatable to the aforesaid provisions were relevant, and not all sections were within the ambit of exception. Section 31 of the 1972 Act which provided for Appeals and Revisions, was not protected by Section 4 of the Suspension Act, 1975. Thus, the DC, in our mind lacked inherent jurisdiction to either entertain the appeal or endorse the compromise during the suspended phase. In cases where the authority lacked jurisdiction under a special Act and yet exercises powers, without authority of law, any order or decree so passed through such unlawful exercise of power, will be a legal nullity. The deficiency of jurisdiction of the authority cannot be cured by the consent of the parties. The challenge to such an incompetent order could be set up wherever it is sought to be enforced or relied upon, even in execution or in collateral proceedings (1991) 3 SCC 136, Para. 5 | (2017) 3 SCC 740, Para. 35. Accordingly answering in favour of the defendants, the DCs order in our opinion can have no legal effect as the same was passed during the operation of Suspension Act, 1975. We have found that the compromise being unregistered cannot confer title on the respondent.Equity as we know follows the law, and whenever there is a conflict between law and equity, it is the law which must prevail. Here the Latin maxim dura lex sed lex, which means the law is hard, but it is the law would apply. Equity can only supplement the law, but it cannot supplant or override it (2007) 2 SCC 230, Para. 29, and this would have a bearing against the respondent.32. The records in the case show that Sucha Singh, during his life time, had cancelled the two Wills in favour of the plaintiff. This indicates that Sucha Singh was not interested to give any part of his property to the plaintiff. Even otherwise, the suit property is self-acquired property of Sucha Singh, and a donee cannot claim equity in respect of the disposal of self-acquired properties, by a donor. Equity is all about balancing the competing interests and due weightage must be given to the fact that the appellants have been in possession and was nurturing their fathers land for over four decades and the estoppel principle propounded against them by the respondent must give way to the law set out by the statute (2021) 3 SCC 401 .33. Notwithstanding the concurrent finding against them, in a case like this, where the law leans in appellants favour, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co (2007) 8 SCC 120 ., the exercise of extraordinary jurisdiction under Article 136 is found to be merited in this matter. | 1 | 7,286 | 2,311 | ### 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:
in paragraph 6 of the Suit. In circumstances of this kind, we are quite certain that the compromise was required to be registered, under Section 49 of the Registration Act, 1977 and also under Section 138 of the J&K Transfer of Property Act. Without such registration no title can fructify for the plaintiff from the documents in question. 27. Furthermore, the compromise and the DCs consequent Order, was passed in a revenue proceeding and this was definitely not a part of a Court proceeding. That being the case, the compromise did not fall under the exception category under Section 17(2)(vi) of Registration Act, 1977 (as applicable to then State of J&K). The above makes it abundantly clear that the compromise in order to have legal effect needed registration under the Registration Act, 1977. 28. Significantly, the DCs 24.12.1975 order based on the Compromise, also dealt with 6 Kanals land forming part of Survey No. 1829 & 1838 which went to the ownership of the tenant - Jalil Khan. The subject compromise or the DCs order was not restricted only to 11 Kanals and 15 Marlas as claimed by the Plaintiff. These circumstances would imply that the compromise required registration for it to be of any legal effect. Since title is claimed, and the plaintiff founded his entire case on the compromise, it would necessarily require registration. Accordingly, question B is answered in affirmative. 29. The defendants have also unsuccessfully argued before the High Court that the jurisdiction of the Deputy Commissioner to exercise powers under the J&K Agrarian Reforms Act, 1972 stood suspended on the date of passing the Compromise Decree. Such a question of law has a material bearing on this litigation and the same needs to be considered. The 1972 Act as noted earlier, was suspended during 25.03.1975 to 30.03.1976 and during this period the Compromise was recorded on 18.12.1975 and the 24.12.1975 Order was passed by the DC. The power exercised for these orders are traceable to the suspended provisions of the Act. Of course, the J&K Agrarian Reforms (Suspension of Operations) Act, 1975 did have a proviso which created exceptions for certain sections of the 1972 Act. The relevant part of the proviso reads thus; 4. Certain provisions of Act No. XXCI not suspended for the time being- (1) The provisions of Sections 15, 25, 26, 27, 28, and 51 and the provisions of Chapter V of the principal Act in so far as they relate to these sections and any rules, notifications, orders and instructions issued thereunder including any proceedings instituted or actions taken under the said provisions and pending on the date of commencement of this Act, shall be continued and enforced as heretofore:… 30. The above makes it clear that this case is outside the ambit of any of the exempted sections such as Section 15 (Prohibition on transfer of land), 25 (levy of annual tax), 27 (collection of tax), 28 (Determination of ques-levy of tax related), 51 (repeal & savings) of the 1972 Act. Only such provisions of Chapter V which were relatable to the aforesaid provisions were relevant, and not all sections were within the ambit of exception. Section 31 of the 1972 Act which provided for Appeals and Revisions, was not protected by Section 4 of the Suspension Act, 1975. Thus, the DC, in our mind lacked inherent jurisdiction to either entertain the appeal or endorse the compromise during the suspended phase. In cases where the authority lacked jurisdiction under a special Act and yet exercises powers, without authority of law, any order or decree so passed through such unlawful exercise of power, will be a legal nullity. The deficiency of jurisdiction of the authority cannot be cured by the consent of the parties. The challenge to such an incompetent order could be set up wherever it is sought to be enforced or relied upon, even in execution or in collateral proceedings (1991) 3 SCC 136, Para. 5 | (2017) 3 SCC 740, Para. 35. Accordingly answering in favour of the defendants, the DCs order in our opinion can have no legal effect as the same was passed during the operation of Suspension Act, 1975. We have found that the compromise being unregistered cannot confer title on the respondent. 31. The final issue for our consideration is whether estoppel principle would apply against the defendants in their challenge to DCs order. Equity as we know follows the law, and whenever there is a conflict between law and equity, it is the law which must prevail. Here the Latin maxim dura lex sed lex, which means the law is hard, but it is the law would apply. Equity can only supplement the law, but it cannot supplant or override it (2007) 2 SCC 230, Para. 29, and this would have a bearing against the respondent. 32. The records in the case show that Sucha Singh, during his life time, had cancelled the two Wills in favour of the plaintiff. This indicates that Sucha Singh was not interested to give any part of his property to the plaintiff. Even otherwise, the suit property is self-acquired property of Sucha Singh, and a donee cannot claim equity in respect of the disposal of self-acquired properties, by a donor. Equity is all about balancing the competing interests and due weightage must be given to the fact that the appellants have been in possession and was nurturing their fathers land for over four decades and the estoppel principle propounded against them by the respondent must give way to the law set out by the statute (2021) 3 SCC 401 . 33. Notwithstanding the concurrent finding against them, in a case like this, where the law leans in appellants favour, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co (2007) 8 SCC 120 ., the exercise of extraordinary jurisdiction under Article 136 is found to be merited in this matter.
### Response:
1
### Explanation:
subject-matter of the suit or proceeding, clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.25. Further, in K. Raghundandan & Ors. vs. Ali Hussain Sabir & Ors. [supra], while referring to Bhoop Singh [supra], the Court held that consent terms creating rights/title or interest for the first time, as distinguished from recognition of a right, would require registration if the value of property is above Rs. 100. This was affirmed by a three Judges bench in Phool Patti vs. Ram Singh [supra]. Lastly, in Ripudaman Singh vs. Tikka Maheshwar Chand (2021) 7 SCC 446, this Court held that where there is no pre-existing right, but right has been created by the compromise alone, such compromise creating new right, title or interest in immovable property of value of Rs. 100 or above, is compulsorily registrable.26. In the present case, the Appeal filed by the tenant – Jalil Khan arose from the change of the entry in the records during the process of verification under the 1972 Act. It was in this Appeal that the compromise was recorded and endorsed by the DCs Order, recognizing the possession of the Plaintiff for the very first time, as was also admitted by plaintiff in paragraph 6 of the Suit. In circumstances of this kind, we are quite certain that the compromise was required to be registered, under Section 49 of the Registration Act, 1977 and also under Section 138 of the J&K Transfer of Property Act. Without such registration no title can fructify for the plaintiff from the documents in question.27. Furthermore, the compromise and the DCs consequent Order, was passed in a revenue proceeding and this was definitely not a part of a Court proceeding. That being the case, the compromise did not fall under the exception category under Section 17(2)(vi) of Registration Act, 1977 (as applicable to then State of J&K). The above makes it abundantly clear that the compromise in order to have legal effect needed registration under the Registration Act, 1977.28. Significantly, the DCs 24.12.1975 order based on the Compromise, also dealt with 6 Kanals land forming part of Survey No. 1829 & 1838 which went to the ownership of the tenant - Jalil Khan. The subject compromise or the DCs order was not restricted only to 11 Kanals and 15 Marlas as claimed by the Plaintiff. These circumstances would imply that the compromise required registration for it to be of any legal effect. Since title is claimed, and the plaintiff founded his entire case on the compromise, it would necessarily require registration. Accordingly, question B is answered in affirmative.30. The above makes it clear that this case is outside the ambit of any of the exempted sections such as Section 15 (Prohibition on transfer of land), 25 (levy of annual tax), 27 (collection of tax), 28 (Determination of ques-levy of tax related), 51 (repeal & savings) of the 1972 Act. Only such provisions of Chapter V which were relatable to the aforesaid provisions were relevant, and not all sections were within the ambit of exception. Section 31 of the 1972 Act which provided for Appeals and Revisions, was not protected by Section 4 of the Suspension Act, 1975. Thus, the DC, in our mind lacked inherent jurisdiction to either entertain the appeal or endorse the compromise during the suspended phase. In cases where the authority lacked jurisdiction under a special Act and yet exercises powers, without authority of law, any order or decree so passed through such unlawful exercise of power, will be a legal nullity. The deficiency of jurisdiction of the authority cannot be cured by the consent of the parties. The challenge to such an incompetent order could be set up wherever it is sought to be enforced or relied upon, even in execution or in collateral proceedings (1991) 3 SCC 136, Para. 5 | (2017) 3 SCC 740, Para. 35. Accordingly answering in favour of the defendants, the DCs order in our opinion can have no legal effect as the same was passed during the operation of Suspension Act, 1975. We have found that the compromise being unregistered cannot confer title on the respondent.Equity as we know follows the law, and whenever there is a conflict between law and equity, it is the law which must prevail. Here the Latin maxim dura lex sed lex, which means the law is hard, but it is the law would apply. Equity can only supplement the law, but it cannot supplant or override it (2007) 2 SCC 230, Para. 29, and this would have a bearing against the respondent.32. The records in the case show that Sucha Singh, during his life time, had cancelled the two Wills in favour of the plaintiff. This indicates that Sucha Singh was not interested to give any part of his property to the plaintiff. Even otherwise, the suit property is self-acquired property of Sucha Singh, and a donee cannot claim equity in respect of the disposal of self-acquired properties, by a donor. Equity is all about balancing the competing interests and due weightage must be given to the fact that the appellants have been in possession and was nurturing their fathers land for over four decades and the estoppel principle propounded against them by the respondent must give way to the law set out by the statute (2021) 3 SCC 401 .33. Notwithstanding the concurrent finding against them, in a case like this, where the law leans in appellants favour, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co (2007) 8 SCC 120 ., the exercise of extraordinary jurisdiction under Article 136 is found to be merited in this matter.
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Narmada Bachao Andolan Vs. Union of India & Others | to be considered at the stage of its final hearing. 23. The many interim orders that this Court made in the years in which this writ petition was pending show how very little had been done in regard to the relief and rehabilitation of those ousted. It is by reason of the interim orders, and, in fairness, the co-operation and assistance of learned counsel who appeared for the States, that much that was wrong has now been redressed. The States have also been persuaded to set up Grievance Redressal Authorities and it will be the responsibility of these Authorities to ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure. 24. The States are lagging behind in the matter of the identification and acquisition of land upon which the oustees are to be resettled. Having regard to the experience of the past, only the Grievance Redressal Authorities can be trusted by this Court to ensure that the States are in possession of vacant lands suitable for the rehabilitation of the oustees. During the time that it takes to assess the environmental impact of the Project, the States must take steps to obtain, by acquisition or otherwise, vacant possession of suitable lands upon which the oustees can be rehabilitated. When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra must certify, after inspection, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ousted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States; and this process must be repeated for every successive proposed 5 meter increase in the dam height. 25. Only by ensuring that relief and rehabilitation is so supervised by the Grievance Redressal Authorities can this Court be assured that the oustees will get their due. 26. It is necessary to provide for the contingency that, for one or other reason, the work on the Project, now or at any time in the future, does not proceed and the Project is not completed. Should that happen, all oustees who have been rehabilitated must have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they must not be made at all liable in monetary or other terms on this account. 27. When the writ petition was filed the process of relief and rehabilitation, such as it was, was going on. The writ petitioners were not guilty of any laches in that regard. In the writ petition they raised other issues, one among them being related to the environmental clearance of the Project. Given what has been held in respect of the environmental clearance, when the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approached belatedly. 28. I should not be deemed to have agreed to anything stated in Brother Kirpals judgment for the reason that I have not traversed it in the course of what I have stated. 29. In the premises, (1) The Environmental Impact Agency of the Ministry of Environment and Forests of the Union of India shall forthwith appoint a Committee of Experts in the fields mentioned in Schedule III of the notification dated 27th January, 1994, called the Environmental Impact Assessment Notification, 1994. (2) The Committee of Experts shall gather all necessary data on the environmental impact of the Project. They shall be free to commission or carry out such surveys and studies and the like as they deem necessary. They shall also consider such surveys and studies as have already been carried out. (3) Upon such data, the Committee of Experts shall assess the environmental impact of the Project and decide if environmental clearance to the project can be given and, if it can, what environmental safeguard measures must be adopted, and their cost. (4) In so doing, the Committee of Experts shall take into consideration the fact that the construction of the dam and other work on the Project has already commenced. (5) Until environmental clearance to the project is accorded by the Committee of Experts as aforestated, further construction work on the dam shall cease. (6) The Grievance Redressal Authorities of the States of Gujarat. Madhya Pradesh and Maharashtra shall ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure. (7) When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall, after inspection, certify, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ousted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States. (8) This process shall be repeated for every successive proposed 5 meter increase in the dam height. (9) If for any reason the work on the Project, now or at any time in the future, cannot proceed and the Project is not completed, all oustees who have been rehabilitated shall have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they shall not be made at all liable in monetary or other terms on this account. 30. | 1[ds]The many interim orders that this Court made in the yearin which this writ petition was pending show how very little had been done in regard to the relief andse ousted. It is byinterim orders, and, inon and assistance of learned counsel who appeared for the States, that much that was wrong has now been redressed. The States have also been persuaded to set up Grievance Redressal Authorities and it will be the responsibility of these Authorities to ensure that those ousted byof the Projectare given relief and rehabilitation in due measure.The States are lagging behind in the matter of the identification andnd upon which the oustees are to be resettled. Havingto the experience of the past, only the Grievance Redressal Authorities can be trusted by this Court to ensure that the States are innt lands suitable for theoustees. During the time that it takes to assess the environmental impactof the project,the States must take steps to obtain, by acquisition or otherwise, vacantle lands upon which the oustees can be rehabilitated. When theobtains environmental clearance, assuming that iteach of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra must certify, after inspection, before work on the furtherof the damcan begin, that all those ousted byn the heightof the damby 5 meters from its present level have already been satisfactorilyrehabilitating all those who will be ousted by the increasethe height ofby another 5 meters is already in theof the respectiveand this process must be repeated for every successive proposed 5 meter increase in the dam height.Only by ensuring that relief and rehabilitation is so supervised by the Grievance Redressal Authorities can this Court be assured that the oustees will get their due.It is necessary to provide for the contingency that, for one or other reason, the, now or at any time in the future, does not proceed and theis not completed. Should that happen, all oustees who have been rehabilitated must have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they must not be made at all liable in monetary or other terms on this account.When the writ petition was filed the processof relief andsuch as it was, was going on. The writ petitioners were not guilty of any laches in that regard. In the writ petition they raised other issues, one among them being related to the environmental clearanceGiven what has been held in respect of the environmental clearance, when the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approachedn of theare given relief and rehabilitation in due measure. | 1 | 8,510 | 493 | ### 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:
to be considered at the stage of its final hearing. 23. The many interim orders that this Court made in the years in which this writ petition was pending show how very little had been done in regard to the relief and rehabilitation of those ousted. It is by reason of the interim orders, and, in fairness, the co-operation and assistance of learned counsel who appeared for the States, that much that was wrong has now been redressed. The States have also been persuaded to set up Grievance Redressal Authorities and it will be the responsibility of these Authorities to ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure. 24. The States are lagging behind in the matter of the identification and acquisition of land upon which the oustees are to be resettled. Having regard to the experience of the past, only the Grievance Redressal Authorities can be trusted by this Court to ensure that the States are in possession of vacant lands suitable for the rehabilitation of the oustees. During the time that it takes to assess the environmental impact of the Project, the States must take steps to obtain, by acquisition or otherwise, vacant possession of suitable lands upon which the oustees can be rehabilitated. When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra must certify, after inspection, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ousted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States; and this process must be repeated for every successive proposed 5 meter increase in the dam height. 25. Only by ensuring that relief and rehabilitation is so supervised by the Grievance Redressal Authorities can this Court be assured that the oustees will get their due. 26. It is necessary to provide for the contingency that, for one or other reason, the work on the Project, now or at any time in the future, does not proceed and the Project is not completed. Should that happen, all oustees who have been rehabilitated must have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they must not be made at all liable in monetary or other terms on this account. 27. When the writ petition was filed the process of relief and rehabilitation, such as it was, was going on. The writ petitioners were not guilty of any laches in that regard. In the writ petition they raised other issues, one among them being related to the environmental clearance of the Project. Given what has been held in respect of the environmental clearance, when the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approached belatedly. 28. I should not be deemed to have agreed to anything stated in Brother Kirpals judgment for the reason that I have not traversed it in the course of what I have stated. 29. In the premises, (1) The Environmental Impact Agency of the Ministry of Environment and Forests of the Union of India shall forthwith appoint a Committee of Experts in the fields mentioned in Schedule III of the notification dated 27th January, 1994, called the Environmental Impact Assessment Notification, 1994. (2) The Committee of Experts shall gather all necessary data on the environmental impact of the Project. They shall be free to commission or carry out such surveys and studies and the like as they deem necessary. They shall also consider such surveys and studies as have already been carried out. (3) Upon such data, the Committee of Experts shall assess the environmental impact of the Project and decide if environmental clearance to the project can be given and, if it can, what environmental safeguard measures must be adopted, and their cost. (4) In so doing, the Committee of Experts shall take into consideration the fact that the construction of the dam and other work on the Project has already commenced. (5) Until environmental clearance to the project is accorded by the Committee of Experts as aforestated, further construction work on the dam shall cease. (6) The Grievance Redressal Authorities of the States of Gujarat. Madhya Pradesh and Maharashtra shall ensure that those ousted by reason of the Project are given relief and rehabilitation in due measure. (7) When the Project obtains environmental clearance, assuming that it does, each of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra shall, after inspection, certify, before work on the further construction of the dam can begin, that all those ousted by reason of the increase in the height of the dam by 5 meters from its present level have already been satisfactorily rehabilitated and also that suitable vacant land for rehabilitating all those who will be ousted by the increase in the height of the dam by another 5 meters is already in the possession of the respective States. (8) This process shall be repeated for every successive proposed 5 meter increase in the dam height. (9) If for any reason the work on the Project, now or at any time in the future, cannot proceed and the Project is not completed, all oustees who have been rehabilitated shall have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they shall not be made at all liable in monetary or other terms on this account. 30.
### Response:
1
### Explanation:
The many interim orders that this Court made in the yearin which this writ petition was pending show how very little had been done in regard to the relief andse ousted. It is byinterim orders, and, inon and assistance of learned counsel who appeared for the States, that much that was wrong has now been redressed. The States have also been persuaded to set up Grievance Redressal Authorities and it will be the responsibility of these Authorities to ensure that those ousted byof the Projectare given relief and rehabilitation in due measure.The States are lagging behind in the matter of the identification andnd upon which the oustees are to be resettled. Havingto the experience of the past, only the Grievance Redressal Authorities can be trusted by this Court to ensure that the States are innt lands suitable for theoustees. During the time that it takes to assess the environmental impactof the project,the States must take steps to obtain, by acquisition or otherwise, vacantle lands upon which the oustees can be rehabilitated. When theobtains environmental clearance, assuming that iteach of the Grievance Redressal Authorities of the States of Gujarat, Madhya Pradesh and Maharashtra must certify, after inspection, before work on the furtherof the damcan begin, that all those ousted byn the heightof the damby 5 meters from its present level have already been satisfactorilyrehabilitating all those who will be ousted by the increasethe height ofby another 5 meters is already in theof the respectiveand this process must be repeated for every successive proposed 5 meter increase in the dam height.Only by ensuring that relief and rehabilitation is so supervised by the Grievance Redressal Authorities can this Court be assured that the oustees will get their due.It is necessary to provide for the contingency that, for one or other reason, the, now or at any time in the future, does not proceed and theis not completed. Should that happen, all oustees who have been rehabilitated must have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they must not be made at all liable in monetary or other terms on this account.When the writ petition was filed the processof relief andsuch as it was, was going on. The writ petitioners were not guilty of any laches in that regard. In the writ petition they raised other issues, one among them being related to the environmental clearanceGiven what has been held in respect of the environmental clearance, when the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approachedn of theare given relief and rehabilitation in due measure.
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Commissioner Of Central Excise, Lucknow Vs. M/S. Chhata Sugar Co. Ltd | the sake of argument that administrative charges form part of the assessable value, even then such charges are in the nature of tax and, therefore, excludible in terms of S.4(4)(d)(ii) of the Act for reasons mentioned hereinafter. 13. Before dealing with the foregoing issue, it may be noted that in this case we are concerned with identification of the nature of levy of administrative charges under S.8(4) and S.8(5) of the U.P. Act. As stated above, the U.P. Act has been enacted with the object of regulating supply and equal distribution of molasses to distilleries and other industrial establishments. Under S.8(4) of the U.P. Act, every sugar factory is made liable to pay to the Government administrative charges at the specified rate on sale or supply of molasses to the distillery. Under S.8(5), every sugar factory is entitled to recover from the buyer administrative charges in addition to the prices of molasses. Under S.10(1) of the U.P. Act, the sugar factory has to sell molasses at a price not exceeding that prescribed in the Schedule. Therefore, the levy of administrative charges is on production for sale of molasses. In the case of Chotabhai Jethabhai Patel & Co. etc. v. Union of India and Anr. etc. reported in [AIR 1962 SC 1006 ], the question before this Court was the nature and character of the duty of excise. It was held that the duty of excise was a tax or duty not intended by the taxing authority to be borne by the person on whom it is imposed and from whom it is collected but it is intended to be passed on to those who purchased the goods on which the duty was collected. That excise duty is a tax as it is imposed in respect of some dealing with the commodities, such as their import or sale, or production for sale. It has been further held that going by the general tendency of a tax, it is capable of being passed on to the consumer or the buyer. In our view, the above test is important because a tax is capable of being passed on to the consumer or tie buyer whereas a fee is a counter payment by the buyer who receives the benefit of the services for which he is charged and such fees are not capable of being passed on as fees to the consumer or the buyer. The above point of distinction is applicable to the facts of this case. In the present matter, as stated above, levy of administrative charges under S.8(4) of the U.P. Act is on the producer of molasses; it is imposed on production of molasses for sale and under S.8(5) the same is passed on to the buyer - distillery. In the circumstances, levy of administrative charges under the U.P. Act is a tax. There is one more circumstances which indicates that the levy of administrative charges under the U.P. Act is a tax. In the case of Matthews v. The Chicory Marketing Board (Victoria) reported in [(1938) 60 Commonwealth Law Reports 263], it has been held that customs and excise duties are indirect taxes as they are additions of definite amounts to the prices at which the goods upon which they are imposed are, in the ordinary course of business, sold by persons who have paid the duties. This test is also applicable to the present case. Under S.8(5) of the U.P. Act, administrative charges is in addition to the prices at which goods are sold in the ordinary course of business by the sugar factory (producer of molasses). Moreover, the predominant object of the U.P. Act is to maximize the revenue by way of tax while regulating storage and supply of molasses. The beneficiary under the said Act is the distillery. It is the distillery which provides important source of revenue to the State. In our view, the said levy of administrative charges is in nature of tax. 14. We can look at the problem from another viewpoint. One of the test to decide whether a levy is a tax or fee is that while tax is a compulsory exaction, fee relates to the principle of quid pro quo. This test can usefully be applied to the facts of the present case. As stated above, the beneficiary of the U.P. Act is the distillery (buyer). All regulatory measures are for the benefit of the said buyer. The sugar factory is merely a collecting agent of administrative charges for the State Government. The administrative charge is not a component of the consideration received by the sugar factory. This is clear from the provisions of S.8(5) which state that the administrative charges shall be collected in addition to the price of the molasses from the buyer - distillery. The said administrative charges do not form part of the revenue of the sugar factory. The said administrative charges cannot be appropriated to the revenue account of the sugar factory. Therefore, there is no element of quid pro quo as far as the administrative charges in the hands of the sugar factory are concerned. On the other hand, under S.8(4) of the U.P. Act read with R.23 of the said U.P. Rules, every sugar factory is required to deposit administrative charges on the molasses sold/supplied before actual delivery to the distillery (buyer), which brings in the principle of compulsory exaction. Hence, administrative charge under the U.P. Act is a tax and not a fee.15. We have decided this case in the light of the scheme of the U.P. Act and the Rules framed thereunder a and, therefore, it is not necessary to examine numerous judgments cited at the bar on the question of difference between the tax and fee. Ultimately, each matter will have to be decided in the light of the provisions of the statute in question. We are, therefore, in agreement with the view expressed in the case of Commissioner of Central Excise, Meerut v. Kisan Sahkari Chinni Mills Ltd. (supra). | 0[ds]8. A bare reading of S.8 inter alia indicates that the Controller may by order require a sugar factory to sell or supply such quantity of molasses to such person(s) as may be specified in his order and the sugar factory shall comply with the order notwithstanding any contract to the contrary. However, S.8(2) makes it clear that such supply of molasses shall be made only to a person who requires it for Ms distillery or for industrialS.8(4) of the U.P. Act, every sugar factory is made liable to pay to the Government administrative charges at the specified rate on sale or supply of molasses to the distillery. Under S.8(5), every sugar factory is entitled to recover from the buyer administrative charges in addition to the prices of molasses. Under S.10(1) of the U.P. Act, the sugar factory has to sell molasses at a price not exceeding that prescribed in the Schedule. Therefore, the levy of administrative charges is on production for sale of molasses. In the case of Chotabhai Jethabhai Patel & Co. etc. v. Union of India and Anr. etc. reported in [AIR 1962 SC 1006 ], the question before this Court was the nature and character of the duty of excise. It was held that the duty of excise was a tax or duty not intended by the taxing authority to be borne by the person on whom it is imposed and from whom it is collected but it is intended to be passed on to those who purchased the goods on which the duty was collected. That excise duty is a tax as it is imposed in respect of some dealing with the commodities, such as their import or sale, or production for sale. It has been further held that going by the general tendency of a tax, it is capable of being passed on to the consumer or the buyer. In our view, the above test is important because a tax is capable of being passed on to the consumer or tie buyer whereas a fee is a counter payment by the buyer who receives the benefit of the services for which he is charged and such fees are not capable of being passed on as fees to the consumer or the buyer. The above point of distinction is applicable to the facts of this case. In the present matter, as stated above, levy of administrative charges under S.8(4) of the U.P. Act is on the producer of molasses; it is imposed on production of molasses for sale and under S.8(5) the same is passed on to the buyerdistillery. In the circumstances, levy of administrative charges under the U.P. Act is a tax. There is one more circumstances which indicates that the levy of administrative charges under the U.P. Act is atest is also applicable to the present case. Under S.8(5) of the U.P. Act, administrative charges is in addition to the prices at which goods are sold in the ordinary course of business by the sugar factory (producer of molasses). Moreover, the predominant object of the U.P. Act is to maximize the revenue by way of tax while regulating storage and supply of molasses. The beneficiary under the said Act is the distillery. It is the distillery which provides important source of revenue to the State. In our view, the said levy of administrative charges is in nature oftest can usefully be applied to the facts of the present case. As stated above, the beneficiary of the U.P. Act is the distillery (buyer). All regulatory measures are for the benefit of the said buyer. The sugar factory is merely a collecting agent of administrative charges for the State Government. The administrative charge is not a component of the consideration received by the sugar factory. This is clear from the provisions of S.8(5) which state that the administrative charges shall be collected in addition to the price of the molasses from the buyerdistillery. The said administrative charges do not form part of the revenue of the sugar factory. The said administrative charges cannot be appropriated to the revenue account of the sugar factory. Therefore, there is no element of quid pro quo as far as the administrative charges in the hands of the sugar factory are concerned. On the other hand, under S.8(4) of the U.P. Act read with R.23 of the said U.P. Rules, every sugar factory is required to deposit administrative charges on the molasses sold/supplied before actual delivery to the distillery (buyer), which brings in the principle of compulsory exaction. Hence, administrative charge under the U.P. Act is a tax and not a fee.15. We have decided this case in the light of the scheme of the U.P. Act and the Rules framed thereunder a and, therefore, it is not necessary to examine numerous judgments cited at the bar on the question of difference between the tax and fee. Ultimately, each matter will have to be decided in the light of the provisions of the statute in question. We are, therefore, in agreement with the view expressed in the case of Commissioner of Central Excise, Meerut v. Kisan Sahkari Chinni Mills Ltd. (supra). | 0 | 7,726 | 982 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the sake of argument that administrative charges form part of the assessable value, even then such charges are in the nature of tax and, therefore, excludible in terms of S.4(4)(d)(ii) of the Act for reasons mentioned hereinafter. 13. Before dealing with the foregoing issue, it may be noted that in this case we are concerned with identification of the nature of levy of administrative charges under S.8(4) and S.8(5) of the U.P. Act. As stated above, the U.P. Act has been enacted with the object of regulating supply and equal distribution of molasses to distilleries and other industrial establishments. Under S.8(4) of the U.P. Act, every sugar factory is made liable to pay to the Government administrative charges at the specified rate on sale or supply of molasses to the distillery. Under S.8(5), every sugar factory is entitled to recover from the buyer administrative charges in addition to the prices of molasses. Under S.10(1) of the U.P. Act, the sugar factory has to sell molasses at a price not exceeding that prescribed in the Schedule. Therefore, the levy of administrative charges is on production for sale of molasses. In the case of Chotabhai Jethabhai Patel & Co. etc. v. Union of India and Anr. etc. reported in [AIR 1962 SC 1006 ], the question before this Court was the nature and character of the duty of excise. It was held that the duty of excise was a tax or duty not intended by the taxing authority to be borne by the person on whom it is imposed and from whom it is collected but it is intended to be passed on to those who purchased the goods on which the duty was collected. That excise duty is a tax as it is imposed in respect of some dealing with the commodities, such as their import or sale, or production for sale. It has been further held that going by the general tendency of a tax, it is capable of being passed on to the consumer or the buyer. In our view, the above test is important because a tax is capable of being passed on to the consumer or tie buyer whereas a fee is a counter payment by the buyer who receives the benefit of the services for which he is charged and such fees are not capable of being passed on as fees to the consumer or the buyer. The above point of distinction is applicable to the facts of this case. In the present matter, as stated above, levy of administrative charges under S.8(4) of the U.P. Act is on the producer of molasses; it is imposed on production of molasses for sale and under S.8(5) the same is passed on to the buyer - distillery. In the circumstances, levy of administrative charges under the U.P. Act is a tax. There is one more circumstances which indicates that the levy of administrative charges under the U.P. Act is a tax. In the case of Matthews v. The Chicory Marketing Board (Victoria) reported in [(1938) 60 Commonwealth Law Reports 263], it has been held that customs and excise duties are indirect taxes as they are additions of definite amounts to the prices at which the goods upon which they are imposed are, in the ordinary course of business, sold by persons who have paid the duties. This test is also applicable to the present case. Under S.8(5) of the U.P. Act, administrative charges is in addition to the prices at which goods are sold in the ordinary course of business by the sugar factory (producer of molasses). Moreover, the predominant object of the U.P. Act is to maximize the revenue by way of tax while regulating storage and supply of molasses. The beneficiary under the said Act is the distillery. It is the distillery which provides important source of revenue to the State. In our view, the said levy of administrative charges is in nature of tax. 14. We can look at the problem from another viewpoint. One of the test to decide whether a levy is a tax or fee is that while tax is a compulsory exaction, fee relates to the principle of quid pro quo. This test can usefully be applied to the facts of the present case. As stated above, the beneficiary of the U.P. Act is the distillery (buyer). All regulatory measures are for the benefit of the said buyer. The sugar factory is merely a collecting agent of administrative charges for the State Government. The administrative charge is not a component of the consideration received by the sugar factory. This is clear from the provisions of S.8(5) which state that the administrative charges shall be collected in addition to the price of the molasses from the buyer - distillery. The said administrative charges do not form part of the revenue of the sugar factory. The said administrative charges cannot be appropriated to the revenue account of the sugar factory. Therefore, there is no element of quid pro quo as far as the administrative charges in the hands of the sugar factory are concerned. On the other hand, under S.8(4) of the U.P. Act read with R.23 of the said U.P. Rules, every sugar factory is required to deposit administrative charges on the molasses sold/supplied before actual delivery to the distillery (buyer), which brings in the principle of compulsory exaction. Hence, administrative charge under the U.P. Act is a tax and not a fee.15. We have decided this case in the light of the scheme of the U.P. Act and the Rules framed thereunder a and, therefore, it is not necessary to examine numerous judgments cited at the bar on the question of difference between the tax and fee. Ultimately, each matter will have to be decided in the light of the provisions of the statute in question. We are, therefore, in agreement with the view expressed in the case of Commissioner of Central Excise, Meerut v. Kisan Sahkari Chinni Mills Ltd. (supra).
### Response:
0
### Explanation:
8. A bare reading of S.8 inter alia indicates that the Controller may by order require a sugar factory to sell or supply such quantity of molasses to such person(s) as may be specified in his order and the sugar factory shall comply with the order notwithstanding any contract to the contrary. However, S.8(2) makes it clear that such supply of molasses shall be made only to a person who requires it for Ms distillery or for industrialS.8(4) of the U.P. Act, every sugar factory is made liable to pay to the Government administrative charges at the specified rate on sale or supply of molasses to the distillery. Under S.8(5), every sugar factory is entitled to recover from the buyer administrative charges in addition to the prices of molasses. Under S.10(1) of the U.P. Act, the sugar factory has to sell molasses at a price not exceeding that prescribed in the Schedule. Therefore, the levy of administrative charges is on production for sale of molasses. In the case of Chotabhai Jethabhai Patel & Co. etc. v. Union of India and Anr. etc. reported in [AIR 1962 SC 1006 ], the question before this Court was the nature and character of the duty of excise. It was held that the duty of excise was a tax or duty not intended by the taxing authority to be borne by the person on whom it is imposed and from whom it is collected but it is intended to be passed on to those who purchased the goods on which the duty was collected. That excise duty is a tax as it is imposed in respect of some dealing with the commodities, such as their import or sale, or production for sale. It has been further held that going by the general tendency of a tax, it is capable of being passed on to the consumer or the buyer. In our view, the above test is important because a tax is capable of being passed on to the consumer or tie buyer whereas a fee is a counter payment by the buyer who receives the benefit of the services for which he is charged and such fees are not capable of being passed on as fees to the consumer or the buyer. The above point of distinction is applicable to the facts of this case. In the present matter, as stated above, levy of administrative charges under S.8(4) of the U.P. Act is on the producer of molasses; it is imposed on production of molasses for sale and under S.8(5) the same is passed on to the buyerdistillery. In the circumstances, levy of administrative charges under the U.P. Act is a tax. There is one more circumstances which indicates that the levy of administrative charges under the U.P. Act is atest is also applicable to the present case. Under S.8(5) of the U.P. Act, administrative charges is in addition to the prices at which goods are sold in the ordinary course of business by the sugar factory (producer of molasses). Moreover, the predominant object of the U.P. Act is to maximize the revenue by way of tax while regulating storage and supply of molasses. The beneficiary under the said Act is the distillery. It is the distillery which provides important source of revenue to the State. In our view, the said levy of administrative charges is in nature oftest can usefully be applied to the facts of the present case. As stated above, the beneficiary of the U.P. Act is the distillery (buyer). All regulatory measures are for the benefit of the said buyer. The sugar factory is merely a collecting agent of administrative charges for the State Government. The administrative charge is not a component of the consideration received by the sugar factory. This is clear from the provisions of S.8(5) which state that the administrative charges shall be collected in addition to the price of the molasses from the buyerdistillery. The said administrative charges do not form part of the revenue of the sugar factory. The said administrative charges cannot be appropriated to the revenue account of the sugar factory. Therefore, there is no element of quid pro quo as far as the administrative charges in the hands of the sugar factory are concerned. On the other hand, under S.8(4) of the U.P. Act read with R.23 of the said U.P. Rules, every sugar factory is required to deposit administrative charges on the molasses sold/supplied before actual delivery to the distillery (buyer), which brings in the principle of compulsory exaction. Hence, administrative charge under the U.P. Act is a tax and not a fee.15. We have decided this case in the light of the scheme of the U.P. Act and the Rules framed thereunder a and, therefore, it is not necessary to examine numerous judgments cited at the bar on the question of difference between the tax and fee. Ultimately, each matter will have to be decided in the light of the provisions of the statute in question. We are, therefore, in agreement with the view expressed in the case of Commissioner of Central Excise, Meerut v. Kisan Sahkari Chinni Mills Ltd. (supra).
|
THE STATE OF MADHYA PRADESH & ORS Vs. SOMDUTT SHARMA | 25L. Definitions.- For the purposes of this Chapter,- (a) industrial establishment means— (i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948); (ii) a mine as defined in clause (i) of subsection (1) of section 2 of the Mines Act, 1952 (35 of 1952); or (iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951). (emphasis added) 7. It is the case of the respondent that the Irrigation Department of the first appellant is an Industrial Establishment as it is a Factory as defined in clause (m) of section 2 of the Factories Act. 8. It is, therefore, necessary to consider the definition of Factory under clause (m) of section 2 of the Factories Act, which reads thus:- (m) factory means any premises including the precincts thereof - (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,- (emphasis added) An establishment cannot be termed as a factory unless it is carrying on manufacturing process. The manufacturing process is defined under clause (k) of section 2 of the Factories Act, which reads thus:- (k) manufacturing process means any process for— (i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal; or (ii) pumping oil, water, sewage or any other substance; or (iii) generating, transforming or transmitting power; or (iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding; (v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; (vi) preserving or storing any article in cold storage. (emphasis added) 9. We have carefully perused the findings recorded by the Labour Court as well as the High Court. In paragraph 9 of the Judgment, the Labour Court held that as hundreds of employees are posted in Irrigation Department, provisions of Chapter VB will apply. However, the crucial question whether the Irrigation Department of the first appellant is a factory within the meaning of clause (k) of section 2 of the Factories Act, is not considered at all. Even the learned Single Judge of the High Court has not adverted to this aspect. The Division Bench in paragraph 8 of its judgment observed that Irrigation Department is responsible for creation and maintenance of irrigation potential through construction of Water Resources Department. It is also mentioned that it also looks after the calamity management work. It is stated that as the Irrigation Department is pumping water and sewage, it will be governed by sub-clause (ii) of clause (k) of section 2 of the Factories Act. 10. The respondent has only relied upon sub-clause (ii) of clause (k) of section 2. The Irrigation Department, as noted in paragraph 8 of the impugned judgment and order, looks after creation and maintenance of irrigation potential through construction of water resources projects. The Irrigation Department also deals with disaster management, calamity management, maintenance of flood control works, reservoir operations etc. None of these functions will attract the definition of Industrial Establishment. Even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process. Overall activities and functions of the Irrigation Department will have to be considered while deciding the question whether it is carrying on manufacturing activities. Few employees of the Irrigation Department out of several may be incidentally operating pumps. But the test is what are the predominant functions and activities of the said Department. Even if the activity of operation of pumps is carried on by few employees, the Irrigation department does not carry on manufacturing process. As it is not carrying on manufacturing process, it is not a factory within the meaning of clause (m) of section 2 of the Factories Act. Therefore, the Irrigation Department of the first appellant will not be an Industrial Establishment within the meaning of Section 25L. Accordingly, Chapter VB will have no application in the present case. 11. The learned counsel relied upon a decision of the Apex Court in the case of Sarva Shramik Sangh, Sangli (supra). In the facts of the said case, the employees were involved in activity of pumping of water and therefore, the said decision is of no help to the respondent. As regards compliance with clause (F) of section 25 of the ID Act, Annexure P-1 is a copy of the notice dated 28th January 2012 issued by the Executive Engineer of Sindh Project Pucca Dam Division. It is a notice under section 25F of the ID Act addressed to the respondent. It is stated therein that in compliance with section 25F, a sum of Rs. 36,361/- was being transferred to his bank account mentioned in the notice. This fact is specifically pleaded in ground 5F of this petition. There is no counter filed by the respondent denying the fact of payment of compensation in accordance with Section 25F. 12. The Labour Court as well the learned Single Judge and the learned Division Bench of the High Court have not adverted to the question whether the Irrigation Department of the first appellant is an Industrial Establishment within the meaning of Section 25L. There is no finding recorded that the Irrigation Department of the first appellant is doing manufacturing activity as provided in sub-clause (k) of Section 2 of the Factories Act. | 1[ds]In the present case, there is no dispute that the Irrigation Department satisfied the test of having not less than hundred workmen employed on an average.9. We have carefully perused the findings recorded by the Labour Court as well as the High Court. In paragraph 9 of the Judgment, the Labour Court held that as hundreds of employees are posted in Irrigation Department, provisions of Chapter VB will apply. However, the crucial question whether the Irrigation Department of the first appellant is a factory within the meaning of clause (k) of section 2 of the Factories Act, is not considered at all. Even the learned Single Judge of the High Court has not adverted to this aspect. The Division Bench in paragraph 8 of its judgment observed that Irrigation Department is responsible for creation and maintenance of irrigation potential through construction of Water Resources Department. It is also mentioned that it also looks after the calamity management work. It is stated that as the Irrigation Department is pumping water and sewage, it will be governed by sub-clause (ii) of clause (k) of section 2 of the Factories Act.10. The respondent has only relied upon sub-clause (ii) of clause (k) of section 2. The Irrigation Department, as noted in paragraph 8 of the impugned judgment and order, looks after creation and maintenance of irrigation potential through construction of water resources projects. The Irrigation Department also deals with disaster management, calamity management, maintenance of flood control works, reservoir operations etc. None of these functions will attract the definition of Industrial Establishment. Even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process. Overall activities and functions of the Irrigation Department will have to be considered while deciding the question whether it is carrying on manufacturing activities. Few employees of the Irrigation Department out of several may be incidentally operating pumps. But the test is what are the predominant functions and activities of the said Department. Even if the activity of operation of pumps is carried on by few employees, the Irrigation department does not carry on manufacturing process. As it is not carrying on manufacturing process, it is not a factory within the meaning of clause (m) of section 2 of the Factories Act. Therefore, the Irrigation Department of the first appellant will not be an Industrial Establishment within the meaning of Section 25L. Accordingly, Chapter VB will have no application in the present case.11. The learned counsel relied upon a decision of the Apex Court in the case of Sarva Shramik Sangh, Sangli (supra). In the facts of the said case, the employees were involved in activity of pumping of water and therefore, the said decision is of no help to the respondent. As regards compliance with clause (F) of section 25 of the ID Act, Annexure P-1 is a copy of the notice dated 28th January 2012 issued by the Executive Engineer of Sindh Project Pucca Dam Division. It is a notice under section 25F of the ID Act addressed to the respondent. It is stated therein that in compliance with section 25F, a sum of Rs. 36,361/- was being transferred to his bank account mentioned in the notice. This fact is specifically pleaded in ground 5F of this petition.There is no counter filed by the respondent denying the fact of payment of compensation in accordance with Section 25F.12. The Labour Court as well the learned Single Judge and the learned Division Bench of the High Court have not adverted to the question whether the Irrigation Department of the first appellant is an Industrial Establishment within the meaning of Section 25L. There is no finding recorded that the Irrigation Department of the first appellant is doing manufacturing activity as provided in sub-clause (k) of Section 2 of the Factories Act. | 1 | 2,018 | 725 | ### 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:
25L. Definitions.- For the purposes of this Chapter,- (a) industrial establishment means— (i) a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948); (ii) a mine as defined in clause (i) of subsection (1) of section 2 of the Mines Act, 1952 (35 of 1952); or (iii) a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951). (emphasis added) 7. It is the case of the respondent that the Irrigation Department of the first appellant is an Industrial Establishment as it is a Factory as defined in clause (m) of section 2 of the Factories Act. 8. It is, therefore, necessary to consider the definition of Factory under clause (m) of section 2 of the Factories Act, which reads thus:- (m) factory means any premises including the precincts thereof - (i) whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or (ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on,- (emphasis added) An establishment cannot be termed as a factory unless it is carrying on manufacturing process. The manufacturing process is defined under clause (k) of section 2 of the Factories Act, which reads thus:- (k) manufacturing process means any process for— (i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal; or (ii) pumping oil, water, sewage or any other substance; or (iii) generating, transforming or transmitting power; or (iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding; (v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; (vi) preserving or storing any article in cold storage. (emphasis added) 9. We have carefully perused the findings recorded by the Labour Court as well as the High Court. In paragraph 9 of the Judgment, the Labour Court held that as hundreds of employees are posted in Irrigation Department, provisions of Chapter VB will apply. However, the crucial question whether the Irrigation Department of the first appellant is a factory within the meaning of clause (k) of section 2 of the Factories Act, is not considered at all. Even the learned Single Judge of the High Court has not adverted to this aspect. The Division Bench in paragraph 8 of its judgment observed that Irrigation Department is responsible for creation and maintenance of irrigation potential through construction of Water Resources Department. It is also mentioned that it also looks after the calamity management work. It is stated that as the Irrigation Department is pumping water and sewage, it will be governed by sub-clause (ii) of clause (k) of section 2 of the Factories Act. 10. The respondent has only relied upon sub-clause (ii) of clause (k) of section 2. The Irrigation Department, as noted in paragraph 8 of the impugned judgment and order, looks after creation and maintenance of irrigation potential through construction of water resources projects. The Irrigation Department also deals with disaster management, calamity management, maintenance of flood control works, reservoir operations etc. None of these functions will attract the definition of Industrial Establishment. Even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process. Overall activities and functions of the Irrigation Department will have to be considered while deciding the question whether it is carrying on manufacturing activities. Few employees of the Irrigation Department out of several may be incidentally operating pumps. But the test is what are the predominant functions and activities of the said Department. Even if the activity of operation of pumps is carried on by few employees, the Irrigation department does not carry on manufacturing process. As it is not carrying on manufacturing process, it is not a factory within the meaning of clause (m) of section 2 of the Factories Act. Therefore, the Irrigation Department of the first appellant will not be an Industrial Establishment within the meaning of Section 25L. Accordingly, Chapter VB will have no application in the present case. 11. The learned counsel relied upon a decision of the Apex Court in the case of Sarva Shramik Sangh, Sangli (supra). In the facts of the said case, the employees were involved in activity of pumping of water and therefore, the said decision is of no help to the respondent. As regards compliance with clause (F) of section 25 of the ID Act, Annexure P-1 is a copy of the notice dated 28th January 2012 issued by the Executive Engineer of Sindh Project Pucca Dam Division. It is a notice under section 25F of the ID Act addressed to the respondent. It is stated therein that in compliance with section 25F, a sum of Rs. 36,361/- was being transferred to his bank account mentioned in the notice. This fact is specifically pleaded in ground 5F of this petition. There is no counter filed by the respondent denying the fact of payment of compensation in accordance with Section 25F. 12. The Labour Court as well the learned Single Judge and the learned Division Bench of the High Court have not adverted to the question whether the Irrigation Department of the first appellant is an Industrial Establishment within the meaning of Section 25L. There is no finding recorded that the Irrigation Department of the first appellant is doing manufacturing activity as provided in sub-clause (k) of Section 2 of the Factories Act.
### Response:
1
### Explanation:
In the present case, there is no dispute that the Irrigation Department satisfied the test of having not less than hundred workmen employed on an average.9. We have carefully perused the findings recorded by the Labour Court as well as the High Court. In paragraph 9 of the Judgment, the Labour Court held that as hundreds of employees are posted in Irrigation Department, provisions of Chapter VB will apply. However, the crucial question whether the Irrigation Department of the first appellant is a factory within the meaning of clause (k) of section 2 of the Factories Act, is not considered at all. Even the learned Single Judge of the High Court has not adverted to this aspect. The Division Bench in paragraph 8 of its judgment observed that Irrigation Department is responsible for creation and maintenance of irrigation potential through construction of Water Resources Department. It is also mentioned that it also looks after the calamity management work. It is stated that as the Irrigation Department is pumping water and sewage, it will be governed by sub-clause (ii) of clause (k) of section 2 of the Factories Act.10. The respondent has only relied upon sub-clause (ii) of clause (k) of section 2. The Irrigation Department, as noted in paragraph 8 of the impugned judgment and order, looks after creation and maintenance of irrigation potential through construction of water resources projects. The Irrigation Department also deals with disaster management, calamity management, maintenance of flood control works, reservoir operations etc. None of these functions will attract the definition of Industrial Establishment. Even assuming that some of the employees may be doing the work of pumping of water, that is not sufficient to hold that Irrigation Department of the first appellant is carrying on manufacturing process. Overall activities and functions of the Irrigation Department will have to be considered while deciding the question whether it is carrying on manufacturing activities. Few employees of the Irrigation Department out of several may be incidentally operating pumps. But the test is what are the predominant functions and activities of the said Department. Even if the activity of operation of pumps is carried on by few employees, the Irrigation department does not carry on manufacturing process. As it is not carrying on manufacturing process, it is not a factory within the meaning of clause (m) of section 2 of the Factories Act. Therefore, the Irrigation Department of the first appellant will not be an Industrial Establishment within the meaning of Section 25L. Accordingly, Chapter VB will have no application in the present case.11. The learned counsel relied upon a decision of the Apex Court in the case of Sarva Shramik Sangh, Sangli (supra). In the facts of the said case, the employees were involved in activity of pumping of water and therefore, the said decision is of no help to the respondent. As regards compliance with clause (F) of section 25 of the ID Act, Annexure P-1 is a copy of the notice dated 28th January 2012 issued by the Executive Engineer of Sindh Project Pucca Dam Division. It is a notice under section 25F of the ID Act addressed to the respondent. It is stated therein that in compliance with section 25F, a sum of Rs. 36,361/- was being transferred to his bank account mentioned in the notice. This fact is specifically pleaded in ground 5F of this petition.There is no counter filed by the respondent denying the fact of payment of compensation in accordance with Section 25F.12. The Labour Court as well the learned Single Judge and the learned Division Bench of the High Court have not adverted to the question whether the Irrigation Department of the first appellant is an Industrial Establishment within the meaning of Section 25L. There is no finding recorded that the Irrigation Department of the first appellant is doing manufacturing activity as provided in sub-clause (k) of Section 2 of the Factories Act.
|
Sanjay Kumar Kedia Vs. Narcotics Control Bureau | abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which - (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India. 8. A perusal of Section 24 would show that it deals with the engagement or control of a trade in Narcotic Drugs and Psychotropic Substances controlled and supplied outside India and Section 29 provides for the penalty arising out of an abetment or criminal conspiracy to commit an offence under Chapter IV which includes Section 24. We have accordingly examined the facts of the case in the light of the argument of Mr. Tulsi that the companies only provided third party data and information without any knowledge as to the commission of an offence under the Act. We have gone through the affidavit of Shri A.P. Siddiqui Deputy Director, NCB and reproduce the conclusions drawn on the investigation, in his words. (i) The accused and its associates are not intermediary as defined under section 79 of the said Act as their acts and deeds was not simply restricted to provision of third party data or information without having knowledge as to commission of offence under the NDPS Act. The company (Xponse Technologies Ltd. And Xpose IT Services Pvt. Ltd. Headed by Sanjay Kedia) has designed, developed, hosted the pharmaceutical websites and was using these websites, huge quantity of psychotropic substances (Phentermine and Butalbital) have been distributed in USA with the help of his associates. Following are the online pharmacy websites which are owned by Xponse or Sanjay Kedia. (1) Brother Pharmacy.com and LessRx.com: Brothers pharmacy.com, online pharmacy was identified as a marketing website (front end) for pharmaceutical drugs. LessRx.com has been identified as a back end site which was being utilized to process orders for pharmaceutical drugs through Brotherspharmacy.com. LessRx.coms registrant and administrative contact was listed True Value Pharmacy located at 29B, Rabindra Sarani, Kolkata, India-700073. Telephone No.033-2335-7621 which is the address of Sanjay Kedia. LessRx.coms IP address is 203.86.100.95. The following websites were also utilizing this IP address: ALADIESPHARMACY.com, EXPRESSPHENTERMINE.com, FAMILYYONLINEPHARMACY.com ONLINEEXPRESSPHARMACY.com, SHIPPEDLIPITOR.com Domain name Servers for LessRx.com (IP address: 203.86.100.95) were NS.PALCOMONLINE.com and NS2PALCOMLINE.com. The LessRx.coms website hosting company was identified as Pacom Web Pvt. Ltd., C-56/14,1st Floor, Institutional Area, Sector 62, Noida-201301. Sanjay Kedia entrusted the hosting work to Palcom at VSNL, Delhi. These servers have been seized. Voluntary statement of Shri Ashish Chaudhary, Prop. Of Palcom Web Pvt. Ltd. indicates that He maintained the websites on behalf of Xponse. According to the bank records, funds have been wired from Brothers pharmacy, Incs Washington Mutual Bank Account #0971709674 to Xponse IT services Pvt. Ltd., ABN AMRO bank account No.1029985, Kolkata. (2) Deliveredmedicine.com: A review of the Xponses website-XPONSEIT.com was conducted and observed and advertisement for XPONSERX. That XPONSERX was described as a software platform developed for the purpose of powering online pharmacies. Xponserx was designed to process internet pharmacy orders by allowing customers to order drugs. Drug Enforcement Administration (DEA), USA conducted a who is reverse lookup on domain name XPONSERX.COM was at domaintools.Com and it revealed that XPONSERX.COM was registered to Xponse IT Services Pvt. Ltd, Sanjay Kedia, 29B,Rabindra Sarani, 12E,3rd floor, Kolkata, WB 70073. Telephone no.+91-9830252828 was also provided for Xponse. Two websites were featured on the XPONSEIT.COM websites as featured clients. And these were DELIVEREDMEDICINE.COM AND TRUEVALUEPRESCRIPTIONS.COM. Review indicated that these two websites were internet pharmacies. Consequently a who is reverse look-up on domain name DELIVEREDMEDICINE.COM at domainstools.com conducted by DEA revealed that it was registered to Xponse Inc., 2760 Park Ave., Santa Clara, CA, USA which is the address of Sanjay Kedia. (3) Truevalueprescriptions.com: Review of this website indicated that this website was a internet pharmacy. In addition TRUEVALUEPRESCRIPTIONS listed Phentermine as a drug available for sale. It appeared that orders for drugs could be made without a prescription from the TRUEVALUE website, it was noted that orders for drugs could be placed without seeing a doctor. According to the website, a customer can complete an online questionnaire when placing the order for a drug in lieu of a physical exam in a physicians office. Toll free telephone number 800-590-5942 was provided on the TRUEVALUE website for customer Service. DEA, conducted a who is reverse look-up on domain name TRUEVALUEPRESCRIPTIONS.COM at domaintools.com and revealed that IP address was 203.86.100.76 and the server that hosts the website was located at Palcom, Delhi which also belongs to Xponse. From the above facts it is clear that the Xponse Technologies Ltd and Xponse IT Services Pvt. Ltd were not acting merely as a network service provider but were actually running internet pharmacy and dealing with prescription drugs like Phentermine and Butalbital. 9. We thus find that the appellant and his associates were not innocent intermediaries or network service providers as defined under section 79 of the Technology Act but the said business was only a fagade and camouflage for more sinister activity. In this situation, Section 79 will not grant immunity to an accused who has violated the provisions of the Act as this provision gives immunity from prosecution for an offence only under Technology Act itself. 10. We are therefore of the opinion that in the face of overwhelming inculpatory evidence it is not possible to give the finding envisaged under Section 37 of the Act for the grant of bail that there were reasonable grounds for believing that the appellant was not guilty of the offence alleged, or that he would not resume his activities should bail be granted. 11. For the reasons recorded above, we | 0[ds]We thus find that the appellant and his associates were not innocent intermediaries or network service providers as defined under section 79 of the Technology Act but the said business was only a fagade and camouflage for more sinister activity. In this situation, Section 79 will not grant immunity to an accused who has violated the provisions of the Act as this provision gives immunity from prosecution for an offence only under Technology Act itselfWe are therefore of the opinion that in the face of overwhelming inculpatory evidence it is not possible to give the finding envisaged under Section 37 of the Act for the grant of bail that there were reasonable grounds for believing that the appellant was not guilty of the offence alleged, or that he would not resume his activities should bail be granted | 0 | 2,222 | 144 | ### 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:
abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which - (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India. 8. A perusal of Section 24 would show that it deals with the engagement or control of a trade in Narcotic Drugs and Psychotropic Substances controlled and supplied outside India and Section 29 provides for the penalty arising out of an abetment or criminal conspiracy to commit an offence under Chapter IV which includes Section 24. We have accordingly examined the facts of the case in the light of the argument of Mr. Tulsi that the companies only provided third party data and information without any knowledge as to the commission of an offence under the Act. We have gone through the affidavit of Shri A.P. Siddiqui Deputy Director, NCB and reproduce the conclusions drawn on the investigation, in his words. (i) The accused and its associates are not intermediary as defined under section 79 of the said Act as their acts and deeds was not simply restricted to provision of third party data or information without having knowledge as to commission of offence under the NDPS Act. The company (Xponse Technologies Ltd. And Xpose IT Services Pvt. Ltd. Headed by Sanjay Kedia) has designed, developed, hosted the pharmaceutical websites and was using these websites, huge quantity of psychotropic substances (Phentermine and Butalbital) have been distributed in USA with the help of his associates. Following are the online pharmacy websites which are owned by Xponse or Sanjay Kedia. (1) Brother Pharmacy.com and LessRx.com: Brothers pharmacy.com, online pharmacy was identified as a marketing website (front end) for pharmaceutical drugs. LessRx.com has been identified as a back end site which was being utilized to process orders for pharmaceutical drugs through Brotherspharmacy.com. LessRx.coms registrant and administrative contact was listed True Value Pharmacy located at 29B, Rabindra Sarani, Kolkata, India-700073. Telephone No.033-2335-7621 which is the address of Sanjay Kedia. LessRx.coms IP address is 203.86.100.95. The following websites were also utilizing this IP address: ALADIESPHARMACY.com, EXPRESSPHENTERMINE.com, FAMILYYONLINEPHARMACY.com ONLINEEXPRESSPHARMACY.com, SHIPPEDLIPITOR.com Domain name Servers for LessRx.com (IP address: 203.86.100.95) were NS.PALCOMONLINE.com and NS2PALCOMLINE.com. The LessRx.coms website hosting company was identified as Pacom Web Pvt. Ltd., C-56/14,1st Floor, Institutional Area, Sector 62, Noida-201301. Sanjay Kedia entrusted the hosting work to Palcom at VSNL, Delhi. These servers have been seized. Voluntary statement of Shri Ashish Chaudhary, Prop. Of Palcom Web Pvt. Ltd. indicates that He maintained the websites on behalf of Xponse. According to the bank records, funds have been wired from Brothers pharmacy, Incs Washington Mutual Bank Account #0971709674 to Xponse IT services Pvt. Ltd., ABN AMRO bank account No.1029985, Kolkata. (2) Deliveredmedicine.com: A review of the Xponses website-XPONSEIT.com was conducted and observed and advertisement for XPONSERX. That XPONSERX was described as a software platform developed for the purpose of powering online pharmacies. Xponserx was designed to process internet pharmacy orders by allowing customers to order drugs. Drug Enforcement Administration (DEA), USA conducted a who is reverse lookup on domain name XPONSERX.COM was at domaintools.Com and it revealed that XPONSERX.COM was registered to Xponse IT Services Pvt. Ltd, Sanjay Kedia, 29B,Rabindra Sarani, 12E,3rd floor, Kolkata, WB 70073. Telephone no.+91-9830252828 was also provided for Xponse. Two websites were featured on the XPONSEIT.COM websites as featured clients. And these were DELIVEREDMEDICINE.COM AND TRUEVALUEPRESCRIPTIONS.COM. Review indicated that these two websites were internet pharmacies. Consequently a who is reverse look-up on domain name DELIVEREDMEDICINE.COM at domainstools.com conducted by DEA revealed that it was registered to Xponse Inc., 2760 Park Ave., Santa Clara, CA, USA which is the address of Sanjay Kedia. (3) Truevalueprescriptions.com: Review of this website indicated that this website was a internet pharmacy. In addition TRUEVALUEPRESCRIPTIONS listed Phentermine as a drug available for sale. It appeared that orders for drugs could be made without a prescription from the TRUEVALUE website, it was noted that orders for drugs could be placed without seeing a doctor. According to the website, a customer can complete an online questionnaire when placing the order for a drug in lieu of a physical exam in a physicians office. Toll free telephone number 800-590-5942 was provided on the TRUEVALUE website for customer Service. DEA, conducted a who is reverse look-up on domain name TRUEVALUEPRESCRIPTIONS.COM at domaintools.com and revealed that IP address was 203.86.100.76 and the server that hosts the website was located at Palcom, Delhi which also belongs to Xponse. From the above facts it is clear that the Xponse Technologies Ltd and Xponse IT Services Pvt. Ltd were not acting merely as a network service provider but were actually running internet pharmacy and dealing with prescription drugs like Phentermine and Butalbital. 9. We thus find that the appellant and his associates were not innocent intermediaries or network service providers as defined under section 79 of the Technology Act but the said business was only a fagade and camouflage for more sinister activity. In this situation, Section 79 will not grant immunity to an accused who has violated the provisions of the Act as this provision gives immunity from prosecution for an offence only under Technology Act itself. 10. We are therefore of the opinion that in the face of overwhelming inculpatory evidence it is not possible to give the finding envisaged under Section 37 of the Act for the grant of bail that there were reasonable grounds for believing that the appellant was not guilty of the offence alleged, or that he would not resume his activities should bail be granted. 11. For the reasons recorded above, we
### Response:
0
### Explanation:
We thus find that the appellant and his associates were not innocent intermediaries or network service providers as defined under section 79 of the Technology Act but the said business was only a fagade and camouflage for more sinister activity. In this situation, Section 79 will not grant immunity to an accused who has violated the provisions of the Act as this provision gives immunity from prosecution for an offence only under Technology Act itselfWe are therefore of the opinion that in the face of overwhelming inculpatory evidence it is not possible to give the finding envisaged under Section 37 of the Act for the grant of bail that there were reasonable grounds for believing that the appellant was not guilty of the offence alleged, or that he would not resume his activities should bail be granted
|
Binny Ltd Vs. V. Sadasivan | of the Constitution. 28. In this context, it must be noted that the High Court purported to apply to ratio in the above two decisions on the assumption that all termination simplicitor clauses providing for termination on giving notice will be per se invalid. But the High Court has not examined clauses (8) & (9) of the Agreement between Management and the State of Binny Limited in their entirety. Clause (9) contemplates an inquiry in a case of termination for misconduct. Thus there is a provision for natural justice in case of termination involving misconduct and stigma. In such a case, whether the ratio of the decisions of DTC and Central Inland cases would apply or not, was not examined by the High Court. This is an additional reason why the declaration by the High Court should not be allowed to stand. 29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public / statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsburys Laws of England 3rd ed. Vol. 30, page-682, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.30. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless it may be noticed that the Government or Government authorities at all levels in increasingly employing contractual techniques to achieve its regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but it normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably.31. The decision of the employer in these two cases to terminate the services of their employees cannot be said to have any element of public policy. Their cases were purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by this Court in State of U.P. vs. Bridge & Roof Co., (1996) 6 SCC 22 and also in Kerala State Electricity Board vs. Kurien E. Kalathil (2000) 6 SCC 295. In the latter case, this Court reiterated that the interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily, the remedy is not a writ petition under Article 226. 32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.33. We are unable to perceive any public element in the termination of the employees by the appellant in Civil Appeal No. 1976 of 1998 and the remedy available to the respondents is to seek redressal of their grievance in civil law or under the labour law enactments especially in view of the disputed questions involved as regards the status of employees and other matter. So also, in the civil appeal arising out of SLP (Civil) No. 6016 of 2002, the writ petition has been rightly dismissed by the High Court. We see no merit in the contention advanced by the appellant therein. The High Court rightly held that there is no public law element and the remedy open to the appellant is to seek appropriate relief other than judicial review of the action taken by the respondent company. | 1[ds]16. The above guidelines and principles applied by English courts cannot be fully applied to Indian conditions when exercising jurisdiction under Article 226 r/w 32 of the Constitution. As already stated, the power of the High Courts under Article 226 is very wide and these powers have to be exercised by applying the constitutional provisions and judicial guidelines and violation, if any, of the fundamental rights guaranteed in Part III of the Constitution. In the matter of employment of workers by private bodies on the basis of contracts entered into between them, the courts had been reluctant to exercise the powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involved therein.The above decision cannot be applied to the facts of this case. It is important to note that the college was an aided institution and imparting education to students. These facts are specifically stated in paragraph 15 of the judgment. It was in this background that this Court held that there was a public law element in the matter involved therein and that the college authorities were bound to pay salary and allowances to the teachers. The said case did not emanate from a contract of employment between the workers and the private body. For that reason, the Rudanis case cannot be applied to the facts of the present case.Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public / statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsburys Laws of England 3rd ed. Vol. 30, page-682, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.30. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless it may be noticed that the Government or Government authorities at all levels in increasingly employing contractual techniques to achieve its regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but it normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably.31. The decision of the employer in these two cases to terminate the services of their employees cannot be said to have any element of public policy. Their cases were purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by this Court in State of U.P. vs. Bridge & Roof Co., (1996) 6 SCC 22 and also in Kerala State Electricity Board vs. Kurien E. Kalathil (2000) 6 SCC 295. In the latter case, this Court reiterated that the interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily, the remedy is not a writ petition under Article 226.Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.33. We are unable to perceive any public element in the termination of the employees by the appellant in Civil Appeal No. 1976 of 1998 and the remedy available to the respondents is to seek redressal of their grievance in civil law or under the labour law enactments especially in view of the disputed questions involved as regards the status of employees and other matter. So also, in the civil appeal arising out of SLP (Civil) No. 6016 of 2002, the writ petition has been rightly dismissed by the High Court. We see no merit in the contention advanced by the appellant therein. The High Court rightly held that there is no public law element and the remedy open to the appellant is to seek appropriate relief other than judicial review of the action taken by the respondent company. | 1 | 7,815 | 1,182 | ### 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:
of the Constitution. 28. In this context, it must be noted that the High Court purported to apply to ratio in the above two decisions on the assumption that all termination simplicitor clauses providing for termination on giving notice will be per se invalid. But the High Court has not examined clauses (8) & (9) of the Agreement between Management and the State of Binny Limited in their entirety. Clause (9) contemplates an inquiry in a case of termination for misconduct. Thus there is a provision for natural justice in case of termination involving misconduct and stigma. In such a case, whether the ratio of the decisions of DTC and Central Inland cases would apply or not, was not examined by the High Court. This is an additional reason why the declaration by the High Court should not be allowed to stand. 29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public / statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsburys Laws of England 3rd ed. Vol. 30, page-682, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.30. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless it may be noticed that the Government or Government authorities at all levels in increasingly employing contractual techniques to achieve its regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but it normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably.31. The decision of the employer in these two cases to terminate the services of their employees cannot be said to have any element of public policy. Their cases were purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by this Court in State of U.P. vs. Bridge & Roof Co., (1996) 6 SCC 22 and also in Kerala State Electricity Board vs. Kurien E. Kalathil (2000) 6 SCC 295. In the latter case, this Court reiterated that the interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily, the remedy is not a writ petition under Article 226. 32. Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.33. We are unable to perceive any public element in the termination of the employees by the appellant in Civil Appeal No. 1976 of 1998 and the remedy available to the respondents is to seek redressal of their grievance in civil law or under the labour law enactments especially in view of the disputed questions involved as regards the status of employees and other matter. So also, in the civil appeal arising out of SLP (Civil) No. 6016 of 2002, the writ petition has been rightly dismissed by the High Court. We see no merit in the contention advanced by the appellant therein. The High Court rightly held that there is no public law element and the remedy open to the appellant is to seek appropriate relief other than judicial review of the action taken by the respondent company.
### Response:
1
### Explanation:
into between them, the courts had been reluctant to exercise the powers of judicial review and whenever the powers were exercised as against private employers, it was solely done based on public law element involved therein.The above decision cannot be applied to the facts of this case. It is important to note that the college was an aided institution and imparting education to students. These facts are specifically stated in paragraph 15 of the judgment. It was in this background that this Court held that there was a public law element in the matter involved therein and that the college authorities were bound to pay salary and allowances to the teachers. The said case did not emanate from a contract of employment between the workers and the private body. For that reason, the Rudanis case cannot be applied to the facts of the present case.Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public / statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsburys Laws of England 3rd ed. Vol. 30, page-682, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point.30. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. But nevertheless it may be noticed that the Government or Government authorities at all levels in increasingly employing contractual techniques to achieve its regulatory aims. It cannot be said that the exercise of those powers are free from the zone of judicial review and that there would be no limits to the exercise of such powers, but it normal circumstances, judicial review principles cannot be used to enforce the contractual obligations. When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably.31. The decision of the employer in these two cases to terminate the services of their employees cannot be said to have any element of public policy. Their cases were purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by this Court in State of U.P. vs. Bridge & Roof Co., (1996) 6 SCC 22 and also in Kerala State Electricity Board vs. Kurien E. Kalathil (2000) 6 SCC 295. In the latter case, this Court reiterated that the interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily, the remedy is not a writ petition under Article 226.Applying these principles, it can very well be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution and such body is amenable to the jurisdiction under Article 226 of the Constitution and the High Court under Article 226 of the Constitution can exercise judicial review of the action challenged by a party. But there must be a public law element and it cannot be exercised to enforce purely private contracts entered into between the parties.33. We are unable to perceive any public element in the termination of the employees by the appellant in Civil Appeal No. 1976 of 1998 and the remedy available to the respondents is to seek redressal of their grievance in civil law or under the labour law enactments especially in view of the disputed questions involved as regards the status of employees and other matter. So also, in the civil appeal arising out of SLP (Civil) No. 6016 of 2002, the writ petition has been rightly dismissed by the High Court. We see no merit in the contention advanced by the appellant therein. The High Court rightly held that there is no public law element and the remedy open to the appellant is to seek appropriate relief other than judicial review of the action taken by the respondent company.
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Maharashtra Distilleries Vs. Municipal Corporation Of Aurangabad &Anr | under:— 6. From 1983, the Rectified Spirit was being declared and accepted under Entry 37 collecting octroi duty @ 1.5%. The respondent by the letter dated 16.10.1986 retrospectively revised octroi duty stating that the goods were liable to octri under Entry 7 in Class 1 of the Schedule.7. It was contended on behalf of the appellant that what was imported was Rectified Spirit within the octroi limits of the Corporation for its use in manufacture of IMFL in its factory. The octroi duty was not leviable on its import into the octroi limits of the Corporation under Entry 7 in Class I as at that stage it was not fit for human consumption. The issue that the Rectified Spirit is not fit for human consumption is concluded by the decisions of this Court in Synthetic and Chemicals Ltd. & Ors. vs. State of U.P. & Ors. [(1990) 1 SCC 109] and in the State of U.P. & Ors. vs. Modi Distillery & Ors. [(1995) 5 SCC 753] . Class heading of Class 1 coves articles used for food and drink by men or animals and drugs. Entry 7 covers wines and spirits and beer, ganja, bhang, opium, charas. It cannot be said that the Rectified Spirit falls under this Entry plainly because it cannot be used for food or drink. According to the appellant, the High Court committed a manifest error in holding that the Rectified Spirit fell under Entry 7 of Class I to attract octroi duty @ 5%.8. In opposition, on behalf of the respondent, it was submitted that the Spirit in Entry 7 includes Rectified Spirit. Alternatively, at best it could fall under residuary Entry 86 of Class IX of the Schedule but not under Entry 37 as it is not specifically includes. 9. In order to appreciate these rival contentions, we may now refer to few more facts. From 1983, the goods imported were being declared and accepted under Entry 37 including Rectified Spirit (Ethyl Alcohol) of strength of 95% v/v and octroi duty was paid @1.5%. A notice was issued on 16.10.1986 by respondent claiming octroi duty @ 5% and demanding the difference of octroi duty @ 3.5% retrospectively. In an octroi statute, the incidence of tax can only be on goods actually brought into the local area for use directly i.e. if wine spirit, bear were brought in, the rate of tax would be 5% but if industrial alcohol was brought in, the rate of tax would be otherwise irrespective of the fact that such industrial alcohol was later converted by processing into potable liquor. In the case on hand, the Rectified Spirit brought into local area was not potable liquor and could not be used for food or drink directly. Further on every consignment brought in the local area, all the facts were disclosed to the authorities showing that the Rectified Spirit of the strength of 95% v/v had been brought in and the octroi duty had been paid and accepted @ 1.5% accordingly. The appellant, as stated, manufactures Indian Made Foreign Liquor (IMFL), i.e. potable liquor which is fit for human consumption. For the purpose of manufacture of such liquor, it inter alia imports Rectified Spirit within the local area of the respondent. In the decisions of this Court aforementioned, it is clearly held that the Rectified Spirit cannot be treated as potable liquor as it is not fit for human consumption.10. In the light of facts stated above, there cannot be any doubt that the Rectified Spirit imported by the appellant into octroi limits of the respondent was not fit for human consumption as it was directly at the point. It was only raw material at that stage. No doubt, it is subsequently used in the manufacture of potable liquor but the octroi duty is leviable on the material imported into octroi limits at that stage only, which aspect is not correctly appreciated by the High Court The Rectified Spirit undergoes numerous processes in the distillery of the appellant after importing it on payment of octroi duty before being converted into potable liquor. Class I of the Schedule speaks of "articles used for food or drink by men ....". It would only mean that the articles which were used directly on the import within the local area of the respondent and not articles coming into being after further processing because the octroi duty is leviable on goods actually brought into the local area at that point for use directly. The High Court was also not right in saying that the Rectified Spirit is purified or refined liquor as it has to undergo certain processes including treatment with chemicals and redistillation to remove impurities before it can be treated as pure spirit. It may be stated that even the pure spirit has strength of about 90% v/v and in this form also it is not fit for human consumption. Class I of the Schedule speaks of articles used for food or drink by men or animals and drugs. Sprits included in Entry 7 of the said Class are included in the company of wine and bear which can be used for drink by men. This being the position, contextually spirits in the said Entry 7 cannot be read or understood as including Rectified Spirit. The Rectified Spirit does not fit in Entry 7 and does not match with Class heading of Class I. In these circumstances, we are of the view that Rectified Spirit does not fall in Entry 7 of Class I of the Schedule. It is not possible to accept the contention of the appellant that the Rectified Spirit falls under Entry 37 of Class III. Rectified Spirit is an input in the industrial use of making potable alcohol. As the phraseology of the Entry shows (fuel, lighting, washing), it is inapplicable to inputs. We are, therefore, of the opinion that the Rectified Spirit falls under residuary Entry 86 of Class IX of the Schedule attracting octroi duty @ 2%. | 1[ds]10. In the light of facts stated above, there cannot be any doubt that the Rectified Spirit imported by the appellant into octroi limits of the respondent was not fit for human consumption as it was directly at the point. It was only raw material at that stage. No doubt, it is subsequently used in the manufacture of potable liquor but the octroi duty is leviable on the material imported into octroi limits at that stage only, which aspect is not correctly appreciated by the High Court The Rectified Spirit undergoes numerous processes in the distillery of the appellant after importing it on payment of octroi duty before being converted into potable liquor. Class I of the Schedule speaks of "articles used for food or drink by men ....". It would only mean that the articles which were used directly on the import within the local area of the respondent and not articles coming into being after further processing because the octroi duty is leviable on goods actually brought into the local area at that point for use directly. The High Court was also not right in saying that the Rectified Spirit is purified or refined liquor as it has to undergo certain processes including treatment with chemicals and redistillation to remove impurities before it can be treated as pure spirit. It may be stated that even the pure spirit has strength of about 90% v/v and in this form also it is not fit for human consumption. Class I of the Schedule speaks of articles used for food or drink by men or animals and drugs. Sprits included in Entry 7 of the said Class are included in the company of wine and bear which can be used for drink by men. This being the position, contextually spirits in the said Entry 7 cannot be read or understood as including Rectified Spirit. The Rectified Spirit does not fit in Entry 7 and does not match with Class heading of Class I. In these circumstances, we are of the view that Rectified Spirit does not fall in Entry 7 of Class I of the Schedule. It is not possible to accept the contention of the appellant that the Rectified Spirit falls under Entry 37 of Class III. Rectified Spirit is an input in the industrial use of making potable alcohol. As the phraseology of the Entry shows (fuel, lighting, washing), it is inapplicable to inputs. We are, therefore, of the opinion that the Rectified Spirit falls under residuary Entry 86 of Class IX of the Schedule attracting octroi duty @ 2%. | 1 | 1,546 | 470 | ### 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:
under:— 6. From 1983, the Rectified Spirit was being declared and accepted under Entry 37 collecting octroi duty @ 1.5%. The respondent by the letter dated 16.10.1986 retrospectively revised octroi duty stating that the goods were liable to octri under Entry 7 in Class 1 of the Schedule.7. It was contended on behalf of the appellant that what was imported was Rectified Spirit within the octroi limits of the Corporation for its use in manufacture of IMFL in its factory. The octroi duty was not leviable on its import into the octroi limits of the Corporation under Entry 7 in Class I as at that stage it was not fit for human consumption. The issue that the Rectified Spirit is not fit for human consumption is concluded by the decisions of this Court in Synthetic and Chemicals Ltd. & Ors. vs. State of U.P. & Ors. [(1990) 1 SCC 109] and in the State of U.P. & Ors. vs. Modi Distillery & Ors. [(1995) 5 SCC 753] . Class heading of Class 1 coves articles used for food and drink by men or animals and drugs. Entry 7 covers wines and spirits and beer, ganja, bhang, opium, charas. It cannot be said that the Rectified Spirit falls under this Entry plainly because it cannot be used for food or drink. According to the appellant, the High Court committed a manifest error in holding that the Rectified Spirit fell under Entry 7 of Class I to attract octroi duty @ 5%.8. In opposition, on behalf of the respondent, it was submitted that the Spirit in Entry 7 includes Rectified Spirit. Alternatively, at best it could fall under residuary Entry 86 of Class IX of the Schedule but not under Entry 37 as it is not specifically includes. 9. In order to appreciate these rival contentions, we may now refer to few more facts. From 1983, the goods imported were being declared and accepted under Entry 37 including Rectified Spirit (Ethyl Alcohol) of strength of 95% v/v and octroi duty was paid @1.5%. A notice was issued on 16.10.1986 by respondent claiming octroi duty @ 5% and demanding the difference of octroi duty @ 3.5% retrospectively. In an octroi statute, the incidence of tax can only be on goods actually brought into the local area for use directly i.e. if wine spirit, bear were brought in, the rate of tax would be 5% but if industrial alcohol was brought in, the rate of tax would be otherwise irrespective of the fact that such industrial alcohol was later converted by processing into potable liquor. In the case on hand, the Rectified Spirit brought into local area was not potable liquor and could not be used for food or drink directly. Further on every consignment brought in the local area, all the facts were disclosed to the authorities showing that the Rectified Spirit of the strength of 95% v/v had been brought in and the octroi duty had been paid and accepted @ 1.5% accordingly. The appellant, as stated, manufactures Indian Made Foreign Liquor (IMFL), i.e. potable liquor which is fit for human consumption. For the purpose of manufacture of such liquor, it inter alia imports Rectified Spirit within the local area of the respondent. In the decisions of this Court aforementioned, it is clearly held that the Rectified Spirit cannot be treated as potable liquor as it is not fit for human consumption.10. In the light of facts stated above, there cannot be any doubt that the Rectified Spirit imported by the appellant into octroi limits of the respondent was not fit for human consumption as it was directly at the point. It was only raw material at that stage. No doubt, it is subsequently used in the manufacture of potable liquor but the octroi duty is leviable on the material imported into octroi limits at that stage only, which aspect is not correctly appreciated by the High Court The Rectified Spirit undergoes numerous processes in the distillery of the appellant after importing it on payment of octroi duty before being converted into potable liquor. Class I of the Schedule speaks of "articles used for food or drink by men ....". It would only mean that the articles which were used directly on the import within the local area of the respondent and not articles coming into being after further processing because the octroi duty is leviable on goods actually brought into the local area at that point for use directly. The High Court was also not right in saying that the Rectified Spirit is purified or refined liquor as it has to undergo certain processes including treatment with chemicals and redistillation to remove impurities before it can be treated as pure spirit. It may be stated that even the pure spirit has strength of about 90% v/v and in this form also it is not fit for human consumption. Class I of the Schedule speaks of articles used for food or drink by men or animals and drugs. Sprits included in Entry 7 of the said Class are included in the company of wine and bear which can be used for drink by men. This being the position, contextually spirits in the said Entry 7 cannot be read or understood as including Rectified Spirit. The Rectified Spirit does not fit in Entry 7 and does not match with Class heading of Class I. In these circumstances, we are of the view that Rectified Spirit does not fall in Entry 7 of Class I of the Schedule. It is not possible to accept the contention of the appellant that the Rectified Spirit falls under Entry 37 of Class III. Rectified Spirit is an input in the industrial use of making potable alcohol. As the phraseology of the Entry shows (fuel, lighting, washing), it is inapplicable to inputs. We are, therefore, of the opinion that the Rectified Spirit falls under residuary Entry 86 of Class IX of the Schedule attracting octroi duty @ 2%.
### Response:
1
### Explanation:
10. In the light of facts stated above, there cannot be any doubt that the Rectified Spirit imported by the appellant into octroi limits of the respondent was not fit for human consumption as it was directly at the point. It was only raw material at that stage. No doubt, it is subsequently used in the manufacture of potable liquor but the octroi duty is leviable on the material imported into octroi limits at that stage only, which aspect is not correctly appreciated by the High Court The Rectified Spirit undergoes numerous processes in the distillery of the appellant after importing it on payment of octroi duty before being converted into potable liquor. Class I of the Schedule speaks of "articles used for food or drink by men ....". It would only mean that the articles which were used directly on the import within the local area of the respondent and not articles coming into being after further processing because the octroi duty is leviable on goods actually brought into the local area at that point for use directly. The High Court was also not right in saying that the Rectified Spirit is purified or refined liquor as it has to undergo certain processes including treatment with chemicals and redistillation to remove impurities before it can be treated as pure spirit. It may be stated that even the pure spirit has strength of about 90% v/v and in this form also it is not fit for human consumption. Class I of the Schedule speaks of articles used for food or drink by men or animals and drugs. Sprits included in Entry 7 of the said Class are included in the company of wine and bear which can be used for drink by men. This being the position, contextually spirits in the said Entry 7 cannot be read or understood as including Rectified Spirit. The Rectified Spirit does not fit in Entry 7 and does not match with Class heading of Class I. In these circumstances, we are of the view that Rectified Spirit does not fall in Entry 7 of Class I of the Schedule. It is not possible to accept the contention of the appellant that the Rectified Spirit falls under Entry 37 of Class III. Rectified Spirit is an input in the industrial use of making potable alcohol. As the phraseology of the Entry shows (fuel, lighting, washing), it is inapplicable to inputs. We are, therefore, of the opinion that the Rectified Spirit falls under residuary Entry 86 of Class IX of the Schedule attracting octroi duty @ 2%.
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